Using cancel culture’s tools to dismantle cancel culture?

Last week federal Judge James Ho called on colleagues at a Federalist Society conference to join his growing boycott of not hiring clerks from Yale Law School. He thinks Yale wrongly tolerates cancel culture because (among other things) it did not discipline students who allegedly disrupted a conservative speaker. All Yale Law students should be punished, he thinks. No one could miss the hypocrisy of canceling students for their failure to cancel Yale for its tolerance of cancel culture. 

Judge Ho denies the hypocrisy charge. He champions free speech and thinks we should cancel censors and those who tolerate them. However, there is more at stake than whether Judge Ho is a hypocrite. We should ask when boycotts, shaming, and shunning are appropriate. Can we use the tools of cancel culture to dismantle cancel culture? 

These tools are neither good nor bad. Their aims can be noble (the Montgomery bus boycott or the #MeToo movement) or shameful (the Hollywood blacklists or the Scarlet Letter). They are used (and complained about) by both the left and right. But they can be misused. We should boycott, shame, and shun people who commit terrible acts: racists in the Jim Crow south, the South African apartheid regime, or Harvey Weinstein. In these cases, the tools of cancel culture served good ends with appropriate means. 

We should not use them against innocent people whose actions we dislike but who pursue reasonable (if mistaken) goals. Targeting people with opposing political views has become too common on both the left and right — for example, boycotts of Target for allowing customers to use bathrooms matching their gender identities and companies with ties to the NRA. Using social sanctions to punish political opponents produces mistrust and cycles of retaliation, where we boycott people for boycotting or (like Judge Ho) for not boycotting those we revile.

Of course, in our polarized times, everyone thinks their cause warrants these tactics while their opponents’ do not. But the kneejerk cancelation of every opponent is both symptom and cause of polarization. We should aim for better, presuming most of our clashes are good faith disagreements for which boycotts, shaming, and shunning are inappropriate.

Denying jobs to students who don’t boycott Yale is an obvious case of excess, a moral failure anyone should recognize, especially a federal judge. It punishes innocent students for making reasonable choices about where to get an education. They no more deserve punishment than Judge Ho’s clerks deserve to be denied future jobs for working in his chambers, where cancel culture seems to be embraced. Perhaps Judge Ho does not mean to punish the students, but — at best — his actions treat students as casualties of a boycott targeting Yale, as if the students were products we should refuse to buy, like grapes during the Delano strike.  

We should reserve boycotts, shaming, and shunning for intolerable behavior. Judge Ho points us in the opposite direction, into a world where we punish everyone whose views offend us, including those who will not join our boycotts. Strategies like these are the cause of our cancel culture problems, not the solution.

Scott Altman is Virginia S. and Fred H. Bice Professor of Law at USC Gould School of Law and is an expert in jurisprudence, property and family law.