Pushing Back on Cancel Culture
In the aftermath of the killing of George Floyd, the American Left has begun assaulting statues, parks, and public buildings. Protesters in San Francisco’s Golden Gate Park pulled down statues of slaveowner Francis Scott Key, who wrote “The Star Spangled Banner,” and Saint Junipero Serra, the Spanish priest beatified by the Vatican for building the missions that spread Christianity in the New Spain territory of California. They attacked the monument to Ulysses S. Grant, the general responsible for winning the Civil War and the president who protected freed slaves under Reconstruction. Also vandalized in San Francisco, for obscure reasons, was a bust of the great Spanish novelist Miguel Cervantes, author of Don Quixote, who had himself been held as a slave: the protesters wrote “bastard” on it. Christopher Columbus statues in Boston, Virginia, and Minnesota have been damaged. In Wisconsin, protesters defaced a statue of Union Army Colonel Hans Christian Heg, an ardent abolitionist. New York City will remove a statue of Theodore Roosevelt from the entrance to the American Museum of Natural History Museum for its colonialist and martial imagery. Protesters are now promising to pull down a statue of Abraham Lincoln, the Great Emancipator, from Lincoln Park in Washington, D.C., after almost succeeding in destroying the monument to Andrew Jackson directly across from the White House. The campaign has stretched beyond American shores: in Britain, memorials to Winston Churchill, Cecil Rhodes, and even Mahatma Gandhi have been threatened with destruction.
These acts are more than just the deliberate erasure of history on a mass scale or gross vandalism. They are part of the “cancel culture” that first emerged on our nation’s campuses years ago but has metastasized in the last decade into the broader culture. Like all leftist revolutions, the movement has turned in on itself by seeking to purge colleges and universities of ideologically impure scholars and teachers. If successful, these efforts will spread rapidly, as they perhaps already have, to our workplaces and civic spaces.
This deteriorating environment may justify calling on Congress to protect explicitly every person’s right to hold his own beliefs, on a par with his right to be free from discrimination based on race, gender, or religion. Indeed, the Supreme Court’s recent decision in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 protects against employment discrimination based on homosexuality or transgender identity, may point the way to a further, and necessary, extension of the Act that would protect political speech and activity.
Cases of ideological discrimination on our nation’s campuses continue to emerge. Cornell faculty and alumni are waging a campaign to fire law professor William Jacobson, founder of the Legal Insurrection blog, because he questioned the motives of the Black Lives Matter movement. UCLA business school fired a lecturer, Gordon Klein, for refusing to grant more time to, or change his grading system for, black students during the Floyd protests, though he apparently was following the school’s own rules. Professor Walter Block, a libertarian who serves as the Chair of the Economics Department at Loyola University in New Orleans, is facing student demands for his ouster over claims that he made racist comments published six years ago in the New York Times—though the Times settled the defamation suit he had brought against it for misconstruing his remarks. Berkeley’s public policy school summarily fired lecturer Steven Hayward, objecting to his allegedly racist and homophobic statements on the Powerline blog, among other conservative outlets.
These incidents followed earlier eruptions, before the racial-justice protests in the wake of the Floyd tragedy. Penn Law has apparently been trying to figure out how to get rid of Professor Amy Wax. Because of her controversial comments on immigration at a Washington conference, Penn placed her on academic leave, which puts off for now the question of whether she will be allowed to return to teach. Penn students were already angry with Wax after her 2016 defense of middle–class, bourgeois values. Last spring, Villanova’s president and provost denounced Professors Colleen Sheehan and James Wilson for their newspaper article arguing that the search for classroom “bias” critical of “diversity” on campus amounted to a “mole hunt” that chilled academic freedom. In 2017, Antony Esolen, a distinguished translator of Dante, resigned from his professorship at Providence College after students and colleagues protested his critique of diversity.
And not only conservative and libertarian scholars have been the targets. In 2006, President Bill Clinton’s former Secretary of the Treasury Larry Summers was forced out as president of Harvard because of his characterization of innate gender differences in mathematical and scientific aptitudes. Prominent economists such as Paul Krugman and Justin Wolfers want to get liberal University of Chicago economist Harald Uhlig kicked off prominent editorial positions. Uhlig’s sin? He tweeted that the Black Lives Matter movement “just torpedoed itself, with its full-fledged support of” defunding police. The Federal Reserve Bank of Chicago responded by terminating its consulting contract with Uhlig.
These are not isolated cases of a few overzealous, ideologically biased administrators and faculty. The overwhelming support, among administrators and faculty, for diversity as the prevailing objective in higher education is driving the trend. How do we begin to repair our college and universities? Given that the cultural changes in the university that have led up to the present crisis unfolded over the past 50 years, recovery could be a protracted process, requiring a generation or more. More optimistically, the problem of higher education may be self-liquidating. As some, including entrepreneur Peter Thiel, have argued, the American academy is an expensive, cumbersome, and bureaucratic dinosaur that instills risk aversion, encourages conformity, provides comfort rather than challenge, and offers many students a poor value proposition.
In the nearer term, however, the legal system could be used to prod the dinosaur. Defunding or downsizing the universities is likely to be a major part of the solution, though doing so will take more spine than conservative legislators currently seem to possess. But another beneficial legislative measure, ironically, might come out of the Bostock case. In Bostock, the Supreme Court found that Title VII of the Civil Rights Act of 1964, in forbidding employment discrimination based on an employee’s “sex,” also prohibits discrimination against homosexual and transgender employees. While the Court erred, in our view, in its reading of “sex” to include gays and the transgender, the decision has called attention to a major gap in the statute’s protections—free speech.
Title VII forbids employment discrimination on only five grounds: race, color, religion, national origin, and sex. (Other federal laws prohibit discrimination based on disability and union activity). If employers discriminate against their employees on some other ground, the Civil Rights Act does not protect those employees. So an employer can fire an employee for expressing a political opinion even when the employee is not at work and is using a personal Twitter account at home.
In today’s cancel culture, this makes it highly dangerous for most people to speak freely and openly on controversial issues. Corporate America can take away your job and your livelihood if, say, you criticize BLM publicly, volunteer to be a Republican poll watcher, or challenge your employer’s “woke” culture. In an open society, this is intolerable. Congress should protect the free expression of opinion by closing this gap in our federal civil rights laws.
Federal, state, and local laws protect against employment discrimination. Typically, state and local laws are more sweeping. In Connecticut, for example, employers are forbidden to discriminate on the basis of “the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability, including, but not limited to, blindness or status as a veteran.” Some have called for expanding the number of forbidden grounds to include, for example, discrimination based on weight. And though state laws generally permit political discrimination, some afford modest protection against that as well. In California, employees cannot be discriminated against based upon their political affiliation or political activity, though this does not include speech in the workplace. In Oregon, the Worker Freedom Act prohibits employers from forcing workers to attend political meetings or distribute political communications.
If antidiscrimination norms can be extended to so many categories of persons and types of activities, why doesn’t Congress provide robust protection for political speech, activities, and affiliations? Congress has already made persecution for political opinion a basis for non-Americans to qualify for refugee status. Americans themselves should enjoy similar protection for their own political views.
Many readers might assume that the First Amendment already protects employees’ freedom of speech. Not so. The First Amendment applies only to the government; it does not reach private employers like Nike or Google. The legal situation here is somewhat analogous to that which made the Civil Rights Act of 1964 necessary. Before 1964, as a constitutional matter, the prohibition on racial discrimination applied only to the public sector. Congress had to enact the Civil Rights Act in order to subject private employers to the same antidiscrimination rule.
Of course, an employee’s political opinions and activities are often relevant to his job performance. Federal law should not prohibit the Democratic National Committee from refusing to hire a conservative Republican job applicant, for example. But existing civil rights statutes already contain protections for this case. If political speech or activity is a good-faith occupational qualification, then the employer should be permitted to discriminate on that basis. Not being a Trump supporter may be a valid basis on which the DNC and maybe even CNN can make employment decisions—but not Apple or Wells Fargo.
Drafting the right statutory language to incorporate this new protection into the Civil Rights Act would be challenging, no doubt. Antidiscrimination laws already regulate employers’ decisions pervasively, but they should not go so far as to eliminate discretion altogether. On the other hand, protection against employment discrimination for “political opinion or activity” should not be confined narrowly to political partisanship: few academics are fired for contributing to Republican political campaigns, but some are at risk for challenging culturally dominant left-wing narratives about, say, race and racism.
Perhaps the right answer would be for Congress to legislate that private employers are subject to the same constraints that the First Amendment would impose on comparable public employers. True, some private employers, especially those engaged in expressive activities, may themselves have First Amendment speech and associational rights that Congress could not truncate by statute. But as current state and local laws already show, it should be possible to design protections for the speech and activity of employees, particularly on their own time, without interfering with most employers’ constitutional rights.
Originally published by City Journal in collaboration with Professor John Yoo, Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution, Stanford University.