In battles over offensive speech, the ‘cure’ is usually worse than the disease

The repeated pattern of offensive speech and the societal response — often stigmatized as “cancel culture” — has come to resemble the regularity of medical treatment. In the midst of “treating” the most recent speech controversies by university presidents, however, it is apparent how the confluence of power, money and violence makes the cure worse than the disease.

The course of treatment for speech that outrages — the social regulation of speech — has four phases that follow one another in a predictable sequence: publication, accusation, pillory and sanction. 

The publication phase resembles the disease onset. The speech is put before the public in some way — television interview, social media posts or similar media. 

In the accusation phase, someone — usually a faculty member, student or alum of the speaker’s university — accuses the speaker of “-ism” speech, or speech that constitutes racism, sexism, antisemitism or some type of phobia.

In the pillory phase, the accuser’s networks vilify the speaker as a bigot in the public square and demand that the university impose sanctions. The speaker’s networks then defend the speaker and oppose such sanctions. 

The last phase in the treatment, the sanctions phase, has four outcomes. If the accuser’s networks have more influence with the university than the speaker’s networks, the speaker will be sanctioned in the name of inclusion and belonging. If the speaker’s networks have more influence with the university, the school will refuse to sanction in the name of free speech.

If the two networks have similar levels of influence, the university will claim fidelity to both inclusion and free speech principles and postpone decision-making until the pillory phase has ended. 

At that point, the university will often permanently clear the speaker. Occasionally, however, after clearing the speaker for the speech infraction, the university will sanction the speaker for another infraction. Case in point: In 2016, the University of Kansas cleared a professor of offensive speech allegations, then fired her for insufficient research progress. 

In many ways, the recent resignations of University of Pennsylvania President Liz Magill and Harvard University President Claudine Gay were textbook examples of the social regulation of speech. The two leaders made public statements. They were accused of being antisemitic based on those statements. Their accusers’ networks were activated and overpowered their supporters’ networks, and Penn and Harvard accepted their resignations. Even the shift in the debate from President Gay’s speech to research misconduct is not without precedent, as the KU example illustrates.

What was unique about the social regulation of the presidents’ speech was the unusual visibility of the impacts of power, money and violence, which makes it more difficult to ignore the dark underbelly of the social regulation of speech.

For example, the role and power of accusers often goes unnoticed in social speech regulation. In the presidents’ cases, however, the power of the accuser, Rep. Elise Stefanik — who is not just a Harvard alum, but also the fourth-highest ranking member of the GOP House majority — was the defining aspect of the process. Stefanik’s participation and rhetoric seemed to skew the process away from remedying the specific situations on campus towards something more akin to collecting years of interest from a single individual for broader institutional failings.

Similarly, the cudgel of donor money is usually invisible in the pillory phase. The public and explicit threats to withhold tens of millions of dollars in donations from Penn and Harvard were thus an unusual foregrounding of a traditionally background dynamic, underscoring the huge distortions in academic governance that can result when social pressure is used as a means of accountability.

Lastly, threats of violence are often treated as separate and distinct from the influence battles over offensive or injurious speech. In the presidents’ cases, however, threats of violence were both the disease and the cure. It was the threat of violence against Jews and Jewish students that provided the moral justification for the original congressional hearing. Later, it was threats of violence against Gay that played a significant role in securing the accountability demanded — her resignation. 

The battle against antisemitism on campus, like the battle against racism, sexism and other types of bigotry, is often constructed in high moral terms like equality, inclusiveness, rightness and justice. 

But the presidents’ controversy reminds us that such battles, however important and praiseworthy, are always waged through grubby human decisions made at the intersection of power, money and violence. As the influence of those three factors increases, so does the danger that the cure of accountability and the disease of oppression will differ only in degree, if they differ at all. An update to the traditional course of treatment is desperately needed.

A key place to begin would be by removing resignation, termination and expulsions from the range of options that can be secured by the social regulation of speech. This would not preclude the imposition of other sanctions in response to community protest, nor would it impact consequences imposed on community members who were not protest targets. It would simply remove the greatest incentive for the use of “by any means necessary” methods when collectively targeting individuals.

For example, what if Penn and Harvard had “cancel culture” clauses in their policies and contracts — so that the only immediate sanction possible was a 2 percent pay cut or the imposition of a one semester paid leave of absence? How would that have changed the dynamics and the outcomes?

Accountability is very important. But attempts to enforce such accountability through social regulation of speech have been grossly distorted by the triumvirate of power, money and violence. These make the cure as bad as the disease. It is past time to revise the prescription.

Franciska Coleman is an assistant professor at University of Wisconsin Law School, where she teaches constitutional law and First Amendment law. She has been researching the social regulation of speech for almost a decade. Her latest paper, “The Anatomy of Cancel Culture,” explores the competing narratives of cancel culture and consequence culture.