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Battle over speech rights and cancel culture in the wake of war

The challenging part about defending free speech is that it means defending speech you hate. There has been a lot of that for me the last couple of weeks.

Hamas terrorists killed Israeli civilians on October 7 and took hostage many more, including young children. While many individuals and organizations released statements and protested against terrorism, others justified or excused the terrorist attack; then, when Israel began a military response, protests against Israel erupted on college campuses across the country.

As a constitutional attorney with a mission to defend First Amendment rights, my newsletter is designed around civil liberties, not international relations. I will therefore refrain from attempting to dive into the geopolitical conflict itself, beyond sharing the statement from the Stand Together community (which includes Americans for Prosperity) that quite correctly asserts that “acts of terror can never be justified.”

I’ll instead focus on how the First Amendment has been at play — particularly regarding protest rights and campus speech, given the protests on campuses in recent weeks. And while I usually try to keep this newsletter light-hearted, I’ll aim to treat this subject with the gravitas and respect it deserves.

Censorship on Campus

Many Americans have been warning about the free speech environment on college campuses for years now. In 2015, FIRE president Greg Lukianoff and NYU social psychologist Jonathan Haidt wrote an article for The Atlantic on “the coddling of the American mind,” which they expanded into a book in 2018. They argued that “in the name of emotional well-being, college students are increasingly demanding protection from words and ideas they don’t like.”

Unfortunately, college students’ demands to restrict speech grew ever broader — under the guise of being more inclusive and avoiding offending others. Universities created “safe spaces” and “speech codes” aimed at shielding students from speech that could cause discomfort.

These policies were often unconstitutional and usually misguided (free speech and diversity are not in tension). And after the last few weeks, many observers may also doubt the sincerity of these claims to want to protect students from harmful speech given the response — or lack thereof — from universities where protesters have explicitly excused and sometimes even endorsed violence by the Hamas terrorists.

Protesters on college campuses have celebrated images of the paragliders used by Hamas to kill Israeli civilians, including children; chanted slogans intended to call for the elimination of Israel; and generally praised the Hamas terrorists immediately after their attack.

The First Amendment protects very bad speech like these examples. But it’s hard to miss the hypocrisy of those university officials and advocates whose defense of free speech here seems selective.

For example, while it’s good to see Harvard’s president asserting the school’s “commitment to free expression,” that commitment is apparently quite recent given that Harvard recently received the lowest possible rating in FIRE’s free speech rankings.

Perhaps the universities waving the free speech flag this month will find it difficult to reverse course when they again encounter a speaker or a protest they would prefer not to defend. Perhaps.

Debate over Cancel Culture

And there are also the questions about free speech and its social consequences. In other words, how exactly should we be thinking about what counts as cancel culture given what we’ve seen unfold over the past few weeks?

For example,

  • A New York University law student wrote in a student bar association newsletter that “Israel bears full responsibility” for Hamas’ attack on Israel.
  • A Stanford University instructor reportedly praised Hamas as “freedom fighters” whose “actions are legitimate”; separated Jewish students from others in the class; and downplayed the Holocaust by saying “only six million” Jews died in it.
  • 34 student organizations at Harvard University signed a statement holding “the Israeli regime entirely responsible for all unfolding violence.”

In response,

  • The law firm Winston & Strawn rescinded the NYU law student’s job offer, saying the student’s comments “profoundly conflict with Winston & Strawn’s values as a firm.”
  • The Stanford instructor was removed from the classroom, according to CNN.
  • Many have called for Harvard University to release the names of the student signatories so they could be “blacklisted” (a.k.a put on a list to be shunned, avoided, or excluded) from future employment, and a billboard truck drove around Harvard’s campus with the information of the students whose organizations had signed the statement.

When is something a healthy consequence for bad speech (social disapprobation), and when is it mob justice that shuts down the opportunity for debate (cancel culture)?

A mob demanding professional and social retaliation for a person’s speech feeds cancel culture. An organization determining on its own that public comments by a potential employee directly contradict its values puts the organization well within its rights to rescind an offer.

Let’s look at how that breaks down.

When CNN recently asked Greg Lukianoff to clarify the line between the marketplace of ideas and cancel culture, he unsurprisingly answered, “It depends on the case.”

He added, “Employers can decide who they hire; actually deciding to blacklist [people] for their opinion is cancel culture. It might be cancel culture that many people agree with, but let’s not pretend it’s not cancel culture.”

While cancel culture is a tricky concept, Greg defines it as “the measurable uptick, since roughly 2014, of campaigns to get people fired, disinvited, deplatformed, or otherwise punished for speech that is – or would be – protected by the First Amendment.”

Yale Professor Nicholas Christakis (who was himself the target of cancel culture in 2015 after he and his wife Erika, a fellow Yale educator, urged Yale students not to get offended over Halloween costumes) defines cancel culture as “1) forming a mob, to 2) seek to get someone fired (or disproportionately punished), for 3) statements within Overton window. Extra points if ‘mob’ willfully misinterprets original statement or narrows window behind all recognition.”

As an example: The co-executive chairman of Winston & Strawn, the law firm that withdraw the NYU law student’s job offer, was honored by the Auschwitz Jewish Center Foundation earlier this year; upon receiving the award, the co-executive chairman stated that he looked forward to “continuing [his] efforts in the fight against prejudice (including antisemitism) and injustice in the world.” Here, it’s easy to see how the student’s values may have conflicted with the firm’s.

Defending Speech & Decrying Ugly Ideas

Fortunately, there have been some clarifying voices setting the example for all other colleges. Former U.S. Senator Ben Sasse, who currently serves as the president of the University of Florida, released an exceptional statement unequivocally condemning violence while also promising to protect speech. Here’s part of it:

As for us, our educational mission here begins with the recognition and explicit acknowledgment of human dignity – the same human dignity that Hamas’ terrorists openly scorn. Every single human life matters. We are committed to that truth. We will tell that truth.

In the coming days, it is possible that anti-Israel protests will come to UF’s campus. I have told our police chief and administration that this university always has two foundational commitments: We will protect our students and we will protect speech. This is always true: Our Constitution protects the rights of people to make abject idiots of themselves.

But I also want to be clear about this: We will protect our Jewish students from violence. If anti-Israel protests come, we will absolutely be ready to act if anyone dares to escalate beyond peaceful protest. Speech is protected – violence and vandalism are not.

The whole statement is worth the read, but, if I may, allow me to direct your attention to this line:

“Our Constitution protects the right of people to make abject idiots of themselves.”

A lot of people have been exercising that right in the past weeks. And I’m actually grateful for their doing so.

Because one reason, argue free speech advocates, that free speech should be protected — even hateful speech — is that it’s better to know who the Nazi is in the room than to suppress speech and never find out. (And there’s even historical precedent of defending such speech: In 1977, the ACLU defended the rights of neo-Nazis to march through Skokie, Illinois, where many Holocaust survivors lived; what made the ACLU’s decision even more incredible was that it was supported by a Jewish ACLU leader, Ira Glasser.)

One of the problems with cancel culture is that it doesn’t offer a path to redemption. It assumes people can’t or won’t change.

I don’t believe that. I believe every human, even the ones “making abject idiots of themselves,” is capable of reflection and redemption.

So let’s use our First Amendment rights to condemn bad speech and bad ideas and to invite dialogue. Offer people the chance to learn and grow. As detestable as some of the ideas being promoted these days are, what’s happening in other parts of the world right now is a reminder that the alternative way of resolving those differences — violence — is far worse.

And if you have any thoughts on today’s newsletter or any free speech issues you’d like me to cover, please let me know at


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