The Conflict Between Cancel Culture and the Law

As I showed last time, cancel culture is about the exercise of power, not about molding behavior to fit clearly articulated norms.  That exercise often targets woke individuals who find themselves caught in their own game of “Gotcha!”  That wokeness routinely “devours” its own has been noted many times, but they continue whistling past the graveyard.

Still, the damage cancel culture does to individuals is just part of the problem.  The damage institutions do to themselves is potentially a far more important issue.  The largest law firm in the country lost its managing partner, heavy-hitter William Voge, the University of British Columbia lost star novelist Steven Galloway, Dartmouth College lost the head of its brain sciences department, David Bucci, the Democratic Party lost U.S. Senator Al Franken.  The list goes on and on almost indefinitely.

Those people were considered valuable to their institutions, otherwise they wouldn’t have occupied the prestigious positions they did.  And yet their institutions jettisoned them for the most trivial of infractions and sometimes none at all.  The obvious point: individual accusers have no power if institutions don’t give it to them.  Individuals complain, but it is the university, the newspaper that fires or disciplines their targets.  Is University College London truly better off without Nobel laureate Sir Tim Hunt who resigned rather than be fired for a single silly joke in 2015?

Both individuals and institutions injure themselves by their blind adherence to woke ideology.  Self-harm always raises the question “why?”  For now, I can only offer a partial answer. 

One key to the mystery of why woke individuals cancel friends and colleagues, knowing full well that they could be next, may lie in the subjects about which cancellation occurs - sex and race.  If there’s a single instance of a person being cancelled for anything but a perceived racial or sexual infraction, I can’t think of it. 

Race and sex are the subjects about which the Left has complained most bitterly for decades and it’s their analyses, loony as they are, that have festered and grown in the Petrie dish of academia far removed from the everyday demands of the law (and common sense).  That’s no accident.  Woke precepts and legal ones mostly conflict with each other, so woke power flourishes where legal precepts either don’t apply or are flexible enough to allow it to do so.  There is an ongoing tension between cancel culture and the law.  We see this most clearly when cancel culture, drunk with its own power, staggers into the courtroom, only to learn some hard lessons.

Consider the “Dear Colleague” letter issued by the Civil Rights Division of the U.S. Department of Education in 2011.  It frankly threatened each college and university in the country that receives federal funding with the end of that funding unless it sharply curtailed the due process rights of students accused of sexual misconduct.  That resulted in hundreds of lawsuits against those colleges and universities.  To their shock and chagrin (don’t universities hire lawyers?), the schools learned that a single letter issuing “guidance” didn’t relieve the schools of their legal obligations to their students.  And that in turn resulted in the walking back of the letter’s dictates in the form of rules, issued by the Trump Administration, greatly restoring due process to the accused.  Woke culture attempted to ignore basic legal precepts and failed.

But in other ways it’s succeeded.  Standard employment contracts usually include terms that allow summary punishment of an employee, including discharge, for misconduct considered egregious enough to warrant bypassing whatever procedure is otherwise in place for employee discipline.  Apparently, colleges and universities are using those contractual clauses to justify the type of summary firings and other disciplinary measures accorded professors who, whether wittingly or not, miss the ever-moving goalposts of woke-ism.

My guess is that those decisions are not immune from correction by the courts.  After all, those contractual terms weren’t put there to allow employers to take drastic punitive measures against employees accused of only trivial misdeeds.  To construe them that way would be to undermine the very concept of an employment contract.  But whatever the case, the power of the woke finds its way into spaces not presently occupied by the law or permitted by it. 

(Maybe that’s one reason the woke have taken to burning books.  Books can’t sue.)

In the future, look for more lawsuits like Steven Galloway’s for slander, libel and defamation against his accusers and the university that fired him.  And look for the already-existing concept of “hostile work environment” to be asserted to include woke targeting and its embrace by institutions.  After all, one of the features of cancel culture is that the most outrageous behavior by students, faculty, staff and school administrators is routinely tolerated by the school in the service of punishing the most trivial of “offenses” by their targets.  Many of those targets are white and male, both categories identified for protection by applicable statutes.  Look as well for targets of cancel culture to start demanding that the school, the newspaper, etc., rein in the tortious behavior of its students/employees or become civilly liable for their crimes.

In her article in The Atlantic, Anne Applebaum compares cancel culture with the treatment of Hester Prynne in The Scarlet Letter, an analogy I think is inaccurate. Hawthorne’s heroine would have known that her behavior – adultery, out-of-wedlock childbearing – was considered wrong by society and that she would be punished for it.  By contrast, cancel culture offers little-to-no indication of what is beyond the pale of its ideology.  Yale professor Erika Christakis learned only after the fact that her email saying that Yale students could decide for themselves what costume to wear on Halloween contravened the woke norm.  But Hester Prynne knew in advance. 

A more apt comparison to cancel culture is the McCarthyism of the 50s.  There too, perfectly decent, law-abiding citizens had their lives, careers and reputations ruined whether or not they’d done anything wrong.  A few magic words were all it took.  Then, adults eventually took control and tore down the edifice the Wisconsin senator had erected.

I, for one, wonder when those adults will show up again.




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