Cancel Culture and the Natural Limits of Free Speech
The tragic assassination of Charlie Kirk last week, the reaction of glee by millions of common citizens on the political Left, and the resultant effort by conservatives to cancel liberals have caused a crisis among conservatives. Moderates and constitutionalists have begun to once again make the age-old argument that the Right must not be hypocritical in doing the very thing it accused the Left of doing: “It was wrong when the left did it and is wrong now that the right is doing it. You either believe in debate and speech and the 1st Amendment or you don’t. Clearly, very few people believe in that anymore.”
For these individuals, “right-wing cancel culture” is a cancer that will destroy the body politic. The solution to the vile reaction by liberals to Kirk’s murder is not punishment or ostracization, they argue, but more freedom. We must protect their right to say whatever they think and feel, even if we vehemently disagree. The First Amendment requires this, rational consistency demands it, the Golden Rule teaches it, and it was the creed that Charlie Kirk lived by. To abandon this would be to dishonor the name and memory of Charlie Kirk.
No Moral Equivalency
The debate over political violence in America has raged for decades, and it is not going to be resolved anytime soon. Each side accuses the other of being extreme and of committing the bulk of violent and deadly assaults in the country. This matter need not detain us at the moment. However, beyond the debate about who is engaging in political violence, the primary argument of moral and political equivalence pushed by rank-and-file conservatives is that of “free speech.” They reason that since Kirk championed free speech and civil discourse, both in principle and practice, that any reaction by the Right to Kirk’s murder that treads on the free speech rights of leftists celebrating Kirk’s death would not only be wrong in itself (morally and constitutionally), but also a betrayal of Kirk’s life’s work and the values he believed in.
This argument, of course, is a reaction to the “cancel culture” on the Right that immediately set to work getting liberals celebrating Kirk’s murder fired from their jobs, doxed, and publicly shamed. The argument from the Right in defense of this cancel culture is simple: such celebrations are not merely a difference of opinion, but are morally reprehensible, uncivilized, and dangerous. It encourages mass psychosis and the continued deception—started by the mainstream media, taught at liberal universities, and funded by the Democratic Party—that Kirk was a neo-Nazi, a fascist, and engaged in “trans genocide.” The widespread public mocking and joy at the assassination of a good, innocent, and wholesome man, who had a wife and two children, is socially and politically intolerable. Conservatives rightly refuse to live with such barbarism and vile wickedness; a moral and social line has been crossed, and there must be social consequences.
“Both-sides” equivocations and absolute “free speech” advocates are wrong about the facts, are faulty in their moral judgments, and have an erroneous understanding of American political and legal history.
Speech and Cancel Culture
The belief that Charlie Kirk would have opposed social approbation or embraced a morally vacuous and pluralistic conception of free speech is spurious. While Kirk engaged in intense public debates in many circumstances, to him, speech was a tool to advance a righteous cause, not an end in itself. Even in the midst of debating college students around the country, Kirk did not wait for moral or political consensus—not among college students nor among the general population. Instead, he pursued a vision of the good for America that at once involved both political organization and preaching of the gospel of Christ. These were not in tension for Kirk (as they shouldn’t be for any American Christian).
Speech was the means by which he honored the Western political tradition of reasoning with one’s countrymen over the nature of good and evil, the beautiful and ugly, and what is justice and injustice. It was the means by which he proclaimed Christ crucified before millions. But Kirk was under no delusion that free speech would solve our problems. Behind the scenes, he was a whirlwind of activity, hosting his podcast, organizing TPUSA, playing an intimate role in Trump’s support and re-election, and building a donor base and political machine that will last for years to come. The point is that Kirk did not think he would be able to win over all radical leftists merely by debating winsomely with them; for those who were recalcitrant, they would have to be defeated by conservative political power, prayer, and the providential blessing of God.
Of course, there’s also the point that there is no moral equivalency between the cancel culture on the left and right. In the last decade conservatives were doxed, canceled, publicly shamed, and had their lives and fortunes ruined for holding moral, religious, and political beliefs that were very traditional in America: that marriage is between one man and one woman, exclusively and for life; that homosexual behavior is immoral and harmful, both to individuals and society at large; that critical race theory, anti-racism, and BLM were toxic, anti-white racist ideologies; that “diversity, equity, and inclusion” was a leftist euphemism for minority grievance ideologies seeking to affect a color revolution in America; and that ‘gender-fluidity’ and transgenderism were not only impossible, but rebellion against God’s creation and the mutilation of oneself and of innocent and confused children.
Liberals, on the other hand, are irresponsibly calling anyone who disagrees with their radicalism ‘neo-Nazi’ and ‘fascist.’ They throw around charges of genocide like playground names. They irrationally interpret disagreement as violence. They celebrate murder and assassination, mock a grieving wife and her now fatherless children, and dance upon the grave of a patriotic and Christ-fearing man. We are not the same. And thus it follows that the Right’s “cancel culture” is not the same as the Left’s.
Those whose brains have been fried by liberal bromides are shallowly fixated on the external form of cancel culture, and so they unreasonably conclude that when conservatives get liberals fired, it is the same thing as when liberals get conservatives fired. But what you are canceled for makes all the difference, not only in terms of the moral analysis but also in terms of the social consequences, as the kind of cancel culture practiced powerfully shapes people’s character, as well as the cultural ethos and moral ecosystem in which we all live. The right kind of cancel culture not only saves lives (and possibly even souls), but civilizations as well.
Hard Civil Law vs. Soft Power
There is a deeper reality, however, and that is that “cancel culture” is inevitable. To be more precise, “cancel culture” is a vulgar similitude for the law of fashion. All societies are governed by at least four kinds of law: divine law as the highest law and the mind or will of God (most often know through some kind of scriptural revelation); natural law, or what can be known of God, oneself, and the world by studying history, nature, and cause and effect; civil law, or the constitutional and statutory laws passed by a people in a particular nation; and finally, the law of fashion, also known as the law of honor and shame.
Americans are well-acquainted with divine, natural, and civil law. However, the reality and necessity of the law of fashion often eludes us. The main difference between civil law and the law of fashion is that the former uses hard power and the threat of civil or criminal punishment by government, while the latter uses soft power and the threat of public embarrassment, social ostracization, and loss of opportunities and one’s reputation.
The reason that the law of fashion is necessary is that civil law is simply incapable of morally, socially, and religiously codifying every aspect of life. To try to do so would be to create a bureaucratic leviathan even larger and more totalitarian than the Washington behemoth we all currently live under. The reason that the law of fashion is inevitable is because it provides the social glue, decorum, public clues, and moral signals every high society needs in order to function. Without a consensus among the people, shared through common ways of life and moral signals as to acceptable and unacceptable ways to live, social order and harmony would break down.
In fact, one could argue that the law of fashion is more powerful at shaping a people and civilization than the civil law is. Moreover, civil law itself often follows in the train of the people’s consensus about what is honorable versus what is shameful. In other words, explicit civil law—as well as fundamental laws like constitutions and charters—are the natural expression of the morals, habits, dispositions, religion, and ways of life of a common people.
From this perspective, the Right’s decrying of the Left’s “cancel culture” of the past decade in absolutist terms (i.e., all cancel culture is wrong, let’s get back to being free) has been a fundamental error. Slowly conservatives have come to see that publicly shaming what is immoral and wicked while praising and honoring what is good and beautiful—and using the soft power of social media, employment, and financial pressures to bring the recalcitrant into line—is not wrong in itself; the form is correct, but the problem has been the Left’s complete domination of cancel culture to ostracized conservatives to great effect, driving them from polite society. In the wake of Trump’s re-election last November, the New Right—mentally tougher, politically savvy, culturally wily, and religiously bold—have adopted their own law of fashion. Kirk’s tragic murder has provided a clear opportunity to recapture the high ground of honor and shame for Trump and the New Right.
The Founders on Free Speech
In a recent interview after Kirk’s death, Attorney General Pam Bondi contrasted “free speech” with “hate speech,” declaring that the Trump administration would go after the radical leftists under the guise of “hate speech.” While in principle it is perfectly legitimate to use the enemy’s weapons against them (in this case, “hate speech” is a tool of the Left), the public’s swift condemnation of Bondi’s sentiment clearly signals that this tactic will not work. Even if Trump could find a way to apply hate speech laws exclusively to target leftist extremists, liberals, and the Democratic Party would hang this albatross around Trump’s neck and throw conservative denunciations of hate speech laws (in Europe and America) in his face.
Bondi’s tactic isn’t only imprudent (in this moment), but her contrast between free speech and hate speech is faulty. Conservatives in general do not understand the First Amendment’s right to free speech and freedom of the press in American history and jurisprudence. Like all natural and civil rights, the founders of this country believed that free speech is a moral right that has a purpose or telos; in other words, it only existed within a shared moral horizon. In a letter to Judge John Tyler in 1804, Thomas Jefferson, speaking of the freedom of the press (which was often synonymous with speech), said, “No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual thereto found, is the freedom of the press” (italics added). In other words, a condition of a free press is the pursuit of the truth. Any press that obviously and manifestly abandons this purpose is no longer protected by the First Amendment.
Much earlier, in 1774, in a letter from the Continental Congress to the Province of Quebec, the Congress proclaimed that “The importance of [the freedom of the press] consists [in] the advancement of truth, science, morality, and the arts in general, [and] in the diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.” Finally, in 1833, Joseph Story commented on free speech, saying,
That [the First Amendment] was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen. A man might, out of mere malice and revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn all his domestic peace, and embitter his parental affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; might prejudice all a man’s civil, and political, and private rights; and might stir up sedition, rebellion, and treason even against the government itself, in the wantonness of his passions, or the corruption of his heart. Civil society could not go on under such circumstances.”
This is a small sampling of how the founding generation conceived of free speech and freedom of the press. In short, the purpose of speech was not merely communication; it was to discern the truth, to sift falsehoods and error from reality and knowledge, to know and live according to what is genuinely good, advantageous, and beautiful; it was meant to create harmony, consensus, and a life conducive to social virtue among citizens. Speech among a common people was necessary in order to accomplish these things in a cooperative political community.
For the founders, speech was not merely a private right—the right to sound off and say any crazy, irresponsible, disorderly, or offensive things just because you can. The freedom of speech was primarily the freedom of political speech: to associate politically and use speech to self-organize and articulate one’s views, to address one’s government and bring petitions or grievances to the authorities, and the right of political representatives not to be gagged in the legislature. Properly understood, the First Amendment was designed to protect political speech, as the First Amendment limits Congress and not the state legislatures. The only jurisdiction Congress had over the speech of citizens was political speech related to national politics. The Free Speech Clause was never intended to be a blank check for celebrating public assassinations and other such heinous things.
The reason we can know this is that the founding generation who wrote the First Amendment (and the people who ratified it), all agreed in general about significant restrictions on the speech of ordinary Americans. The basic distinction the founders made was between non-injurious and injurious speech. What did they believe counted as injurious speech? First, personal libel, or what James Wilson defined as “malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to public hatred, contempt, and ridicule.” To qualify as personal libel, there had to be both false statements and malicious intent. The founders believed that libel was a personal injury no different than assault or rape; to destroy a person’s reputation through false speech and slander is to endanger their livelihood and possibly destroy their life. In addition, the founders believed that personal libel endangered the public and destroyed public safety. Why? Because it provokes citizens to anger, private conflict, and violent action.
A second kind of injurious speech was seditious libel, which is speech that is intended to stir up sedition, insurrection, or rebellion against the government. Americans today have been so infected by the lies of liberalism that they truly believe that speech and opinions are irrelevant to the foundations of society—moral or political. But the founders understood what the ancients knew all too well: public opinion is the bedrock upon which every regime is built. If individuals are allowed to sow lies about a constitution, government, or nation, to falsify a people’s history under revisionist accounts, and so convince a majority of the people that their government is illegitimate, then that nation will fall. The belief that seditious libel ought to be civilly enforced led to the Sedition Act of 1798, which made it illegal to make false or malicious statements about the federal government. The Act was contentious, and it expired in 1800; but what most commentators miss is that the debate at the time was not over the appropriateness of seditious libel itself, but whether who had the power to regulate it: the state governments or the national government? No one denied the power of state governments to regulate speech that called for insurrection or rebellion.
A third kind of injurious speech was criminal conspiracy. This is the right by government to ban speech by those planning, aiding, or abetting criminal activity or conspiracy to commit a crime. This was straightforward and non-controversial at the time, and, for the most part, still is today.
Finally, a fourth category of injurious speech was obscenity, profanity, blasphemy, and malicious speech. Generally, this is speech that is injurious to the public health, safety, morals, and religion of the people and was rightly considered the legal purview of the states, not the national government. The founders all believed that without virtue, morality, and religion (defined according to the classical and Christian traditions) republican self-government would fail; therefore, any republican government must help enforce moral and religious norms in speech in order to ensure its own survival. For example, in his Farewell Address (1796), George Washington argued that “it is substantially true that virtue or morality is a necessary spring of popular government.”
In early state case law, judges meted out punishment for blasphemy, obscenity, lies, and maliciousness. In the 1824 Pennsylvania case of Updegraph v. Commonwealth, Abner Updegraph had been fined in a debating association for saying the Bible was full of lies and fables. Judge Thomas Duncan ruled against Updegraph and argued the following:
Licentiousness endangering the public peace, when tending to corrupt society, is considered as a breach of the peace, and punishable by indictment. Every immoral act is not indictable, but when it is destructive of morality generally, it is because it weakens the bonds by which society is held together, and government is nothing more than public order… If from a regard to decency and the good order of society, profane swearing, breach of the Sabbath, and blasphemy, are punishable by civil magistrates, these are not punished as sins or offences against God, but crimes injurious to, and having a malignant influence on society; for it is certain, that by these practices, no one pretends to prove any supposed truths, detect any supposed error, or advance any sentiment whatever.
In People v. Ruggles (1811), a New York man, Mr. Ruggles, had been convicted in Kingsbury of blasphemy for yelling out that “Jesus was a bastard and his mother must be a whore” (he was sentenced to three months jail and $500 fine). In ruling against Mr. Ruggles, Judge James Kent explained that
The free, equal, and undisturbed, enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right … We stand equally in need, now as formerly, of all the moral discipline, and of those principles of virtue, which help to bind society together. The people of this state, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful.
In short, the founders and those who came after them had no hesitation in spelling out in detail the robust limits upon “free speech,” whether uttered by private individuals or members of the press corps. They understood what James in the Bible taught so plainly: “with the tongue we praise our Lord and Father, and with it we curse human beings, who have been made in God’s likeness. Out of the same mouth come praise and cursing” (James 3:9-10). Human speech is not neutral, and governments that try to take a neutral stance and protect all speech, no matter how vile or treasonous, simply will not last.
In conclusion, we must recover the founders’ political vision and jurisprudential precedent of the purposes and restrictions of free speech. While this will certainly require extensive legal battles, not least in front of the Supreme Court, this is the time to fight and win such battles. We have the tools we need to go after the murderous lies and wicked slander lodged against Charlie Kirk and conservatives by the mainstream media; we have the ability to bring charges of actual malice in the speech of radical leftists, and to pursue cases of criminal conspiracy and personal and seditious libel. None of this endangers civil discussion or debate, but in fact would aid and encourage civility and the common love of truth. This is how we honor the legal of Charlie Kirk, not by attributing to him a shallow and fake pluralism that he never believed in or lived by.
