Every now and then the occasion arises where we need to discuss what “free speech” is, and what “free speech” isn’t. Everyone basically agrees that every American has a “right” to “free speech.” But that’s often, especially recently, where the agreement ends.
For many years now a certain late-night comedian/pundit who shall henceforth remain nameless has been insisting that “liberals” who exercise their own “free speech,” and their own economic power, to exert social and economic pressure on content providers and other businesses to stop enabling or providing a platform for this or that particular speaker, are “part of the problem,” and anyone who does that or thinks it’s OK is “not even a proper liberal, because you don’t get free speech.” He said that six years ago, was wrong then, and is wrong now.
It is, and has always been, those who whine and complain about “cancel culture” (as this pundit/comedian constantly does) or related activism being an intrusion upon or a threat to free speech, who “don’t get free speech.”
“Free speech” is best understood by what the Constitution, in its First Amendment, actually says about it: “Congress shall make no law … abridging the freedom of speech[.]” Without getting into the specific historical and jurisprudential reasons how and why, “Congress” includes state and local governments, and “law” includes administrative regulations. What “Congress” does not include is any private individual, entity, corporation, institution, service provider, or property owner; what “law” does not include is any policy, rule, contract or decision by and between a private party and its employees, customers, clients, end-users, or guests.
As most of us realize, “free speech” doesn’t mean risk-free speech, or consequence-free speech. When you say terrible things, other people have every right to point out how terrible the things you said are, and to use any lawful means at their disposal (including their own free-speech and economic rights) to encourage others to not listen to you, not hire you, not do business with you, not to buy what you’re selling (literally and/or figuratively), not to pay you to speak, or not to provide you with a forum/platform in which to speak.
In other words, having a “right to free speech” doesn’t include or infer a “right,” inter alia, to be paid to speak, to have your speech distributed or disseminated into the marketplace by any particular means or medium, to be given a time and place to speak by any private institution or entity, or to require or compel anyone to hear you, listen to you, or care what you have to say.
The reason for this is simple: You have a constitutional right to free speech, but you don’t have a legal right to “free speech.”
Now, I’ve been called a Nazi on this site for explaining the difference between legal and constitutional rights, so at the risk of further beschimpfungen, what do I mean by that? Well, for the purposes of this discussion let’s define and understand “constitutional rights” to mean the rights of a private person or of people in general as against the government or the state, and “legal rights” as the rights of a private person or people as against anyone or anything else.
Generally speaking, I as a private person cannot violate your constitutional rights. Neither can a private corporation or institution. Only the government — a legislature, administrative agency, or law-enforcement officer — can do that. To use the most obvious and ubiquitous example, the 5th and 14th Amendments to the Constitution prohibit the federal government and the states, respectively, from discriminating against you on the basis of (e.g.) race by enacting laws or regulations based on racial classifications, or applying/enforcing existing laws or regulations in a racially-discriminatory manner. You have a constitutional right to due process of law and to equal protection of the laws, which the government/state must respect and uphold.
However, your right to be free from racial (or other) discrimination by, e.g., your boss, your landlord, or your local “Christian” baker, derives not from the Constitution but from the law, viz., from anti-discrimination statutes like the federal Civil Rights Act and various state and local civil/human rights laws. Typically, these kinds of laws create a private right of action to sue or to bring a complaint before a quasi-judicial administrative body, such as a state or local civil-rights commission, against someone who discriminates against you in the employment, housing, or commercial context.1
[1 — Discrimination may also be unlawful under the common law, but a cause of action would be really, really hard to make out, which is why we have anti-discrimination statutes.]
Now, that’s not to say that legal rights can’t operate against the state or state actors; Hobby Lobby, famously, sued the federal government (viz., the Department of Health and Human Services and its Secretary, Kathleen Sebelius) for violating its legal rights under a federal statute, the Religious Freedom Restoration Act (“RFRA”), not its constitutional rights under the First Amendment’s free-exercise clause. By contrast, Cake Jesus’s defense was that the Colorado Civil Rights Commission — a governmental entity — violated his constitutional free-speech (not free exercise2) rights by requiring him to comply with the operative anti-discrimination statute — which he admitted to violating but claimed a “right” to violate — not that the complainants did so by bringing a complaint pursuant thereto (to vindicate their legal, not constitutional, rights).
[2 — The ultimate ruling, of course, had nothing to do with free speech or free exercise, but with a purported procedural requirement of “religious neutrality” that one of the commissioners purportedly breached by making a less-than-laudatory remark about the time-honored tactic of using religion as an excuse for oppression and injustice. But, that’s beside the point...]
When it comes to understanding “rights,” or “individual rights,” a good rule of thumb is that an individual has only those rights that one can enforce. If you can’t enforce your “right” to [X], by seeking and obtaining legal redress for interference therewith, then you have no “right” to [X].3 So, the basic difference between legal and constitutional rights is that the latter can only be enforced against the government/state, whereas the former can be enforced against anyone, including private persons or corporate entities. If you can sue me, or press charges, that means I’ve violated your legal rights, which the courts can enforce on your behalf against me. But you can’t enforce your constitutional rights against me, especially since I have no power to “violate” them.
[3 — Which is not to say you can’t ever do [X], you just can’t claim a “right” to [X] if someone, or the law, interferes with it.]
Which brings us to “cancel culture” vs. “free speech.”
I’m going to divide this into two categories: (1) social-media service providers, and (2) activism. Let’s start with the easy one: Twitter, Facebook, Instagram, et al. are private companies that provide services to consumers/end-users who are permitted to use those services if they agree to the Terms of Service, on which the end-user’s use of the provider’s platform is both expressly and impliedly conditioned. In other words, by creating a social-media account and posting things you are entering into a contract (or quasi-contract) with the provider that you will abide by its rules, and agreeing that it can kick you off (or “ban” you) if you don’t.
“Congress shall make no law” does not mean “private companies shall make no contract.” Contract provisions wherein a party essentially agrees not to speak (or to give up his/her “right” to “speak” in some respect), such as non-disparagement or non-solicitation clauses, are not presumptively unenforceable and are routinely upheld, without reference to “free speech.” As such, if you get “banned” from Twitter by Twitter you can’t enforce any “right to free speech” against Twitter, and Twitter did not in any way infringe upon your “right to free speech.” (1), you have no constitutional “right to free speech” against Twitter, which is not a governmental entity (and made no “law”); and (2) you have no legal “right to free speech” against Twitter, let alone under the Terms of Service that you agreed to abide by.
Activism, i.e., using one’s own free-speech and economic rights (to the extent of one’s ability and capacity) in an effort to exert social and economic pressure upon individuals, institutions, service providers, &c. to modify, curtail, limit, or otherwise affect “speech” within the marketplace of ideas, by the same token, has no bearing on “free speech." Indeed, the “right” to “free speech” must necessarily include the right to take exception to what other people say, and to encourage other people to avoid it, condemn it, or take it off the air. And whether “money is speech” or not, everyone has the right to allocate their own resources as they see fit, and again, to encourage others to do the same. Your “right to free speech” doesn’t supersede or nullify my right to do any of that, let alone require me to give up those rights (or forbear) for your benefit. That’s because your “right to free speech” is constitutional, not legal.
Again, one has only those “rights” that one can enforce. By myself, I don’t have the power to kick anyone off Twitter, TV, or any college campus; I can only encourage and advocate for those with the power to do that, to do that. But if my activism, be it verbal or economic, helps contribute to that result, you can’t sue me; you have no legal recourse against me, because you have no legal right to “free speech” and I didn’t interfere with or take away your constitutional “right to free speech.”
What if I write to my congresswoman or state assemblyman and ask them to pass or propose a law or regulation banning you from TV, radio, newspapers, campuses and social media? Arguably, that might qualify as an attempt to “interfere” with your “right to free speech,” but since Congress couldn’t do that if it wanted to (First Amendment, and bill of attainder), it wouldn’t be a serious attempt, and you couldn’t successfully sue me for it because, inter alia, you could not show damages.
Unless, of course, I made false statements of fact that caused you to get fired from your job or have a paid speaking gig cancelled, in which case you could try to sue me for defamation. But to do that would be to invoke your economic rights, not your “free speech” rights; the only “free speech” rights at issue in a defamation suit are the defendant’s. Same thing applies if you tried to sue me for tortious interference; if I’m telling the truth, and your firing or cancellation was justified under your contract with your employer or host, then you can’t successfully sue me for interfering with that contract. Neither can you sue me for interfering with your prospective future employment; I, and everyone else, have every right to use whatever lawful means are at our disposal to discourage others from hiring, or doing business with, you. And you certainly can’t sue me for “abridging” your “right to free speech.”
Of course, none of this answers the question of whether verbal and/or economic activism of the kind discussed herein — viz., placing or advocating limits on the marketplace of ideas — is a good idea, is fair and reasonable, or does more harm than good; nor does it provide any criteria for answering those questions, as a general matter or in specific anecdotal instances. Of course, that’s not the point. We can discuss, debate and disagree over those questions. Or we can talk about whether there should be a legal “right to free speech” that can be enforced against private persons, and how to go about making that happen. But no matter what you think of “cancel culture” or related activism, it is neither an abridgement of, nor a threat to, “free speech.”