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Dismantling the Cancel Culture with the Tools of the Cancel Culture?

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Last week, U.S. Judge James Ho called on colleagues at a Federalist Society conference to join a growing boycott against not hiring a clerk at Yale Law School. He believes Yale wrongly tolerates cancellation culture because it failed to discipline students who allegedly disrupted conservative speakers (among other things). He believes all Yale law students should be punished. I couldn’t overlook the hypocrisy of canceling students because they couldn’t because of Yale’s tolerance of cancellation culture.

Judge Ho denies the charge of hypocrisy. He defends free speech and believes censorship and those who tolerate it should be abolished. But there is a bigger question than whether Justice Ho is a hypocrite. We should ask when it is appropriate to boycott, disgrace and shun. Can cancellation culture tools be used to dismantle cancellation cultures?

These tools are neither good nor bad. Their aims can be noble (the Montgomery bus boycott and the #MeToo movement) or shameful (the Hollywood blacklist and the scarlet letter). They are used (and complained about) by both the Left and the Right. But they can be abused. We should boycott, shame, and shun those who do terrible things, such as the Jim Crow racists in the south, the apartheid regime in South Africa, or Harvey Weinstein. In such cases, the tools of the cancel culture have yielded good results with the right measures.

They should not be used against innocent people whose behavior we dislike but who are pursuing reasonable (even wrong) goals. People with opposite political views has become all too common on both the left and right. , boycott people who don’t abuse (like Judge Ho).

Of course, in our polarized age, everyone thinks their cause justifies these tactics, but opponents don’t. It is both a symptom and a cause of polarization. Given that most of our conflicts are well-meaning disagreements, and that boycotts, shamings, and shunning are inappropriate, we should aim for the better.

Denying jobs to students who don’t boycott Yale is a clear overreach and a moral failure that everyone, especially federal judges, should be aware of. Punish innocent students who make rational choices about where to get an education. They don’t deserve punishment in the same way that Judge Ho’s clerk is denied future jobs to work in Judge Ho’s chamber, where a cancellation culture seems to be embraced. Presumably, Judge Ho doesn’t intend to punish students, but at best his actions are treating them as victims of a boycott targeting Yale.

Boycotts, shaming and shunning should be reserved for intolerable conduct. Justice Ho steers us in the opposite direction, leading us to a world that punishes anyone who makes our views objectionable, including those who don’t join the boycott. Such strategies are the cause of the cancellation culture problem, not the solution.

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