Cancel Culture and Freedom
In the wake of Simon and Schuster’s decision not to publish Sen. Josh Hawley’s book, The Tyranny of Tech, Hawley has tweeted:
This could not be more Orwellian. Simon & Schuster is canceling my contract because I was representing my constituents, leading a debate on the Senate floor on voter integrity, which they have now decided to redefine as sedition. Let me be clear, this is not just a contract dispute. It’s a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don’t approve of. I will fight this cancel culture with everything I have. We’ll see you in court.
Now I don’t know anything about the details of his contract. If this is breach of contract, I hope he wins. But let me put that aside, and note a few things.
1. A private publisher’s refusing to publish a book is not Orwellian.
First, this does not implicate the First Amendment in any way. The First Amendment, like all but two constitutional provisions, applies only against governmental entities; this so-called “state action doctrine” is one of the most important doctrines of U.S. constitutional law, and plays a vital role in preserving freedom.
But that’s a detail of constitutional law (though it’s presumably a detail that Hawley, a well-trained lawyer, knows about). The more important point is that if Congress or some legislature sought to impose a duty on Simon & Schuster to publish authors without regard to politics, it would be wrong to do so: it would be a violation of Simon & Schuster’s freedom. It would be a violation of its property rights, because it would force Simon & Schuster to use its resources to serve someone it doesn’t want to serve. And it would be a violation of its freedom of association, which is one of our most important rights.
That Simon & Schuster is a corporation is immaterial: talking about its rights is just a shorthand way of talking about the rights of its individual owners, who happen to do business using the corporate form. If I’m a stockholder of ViacomCBS (Simon & Schuster’s parent company), a requirement that Simon & Schuster act evenhandedly with respect to politics violates my property rights and freedom of association (which I’ve chosen to exercise together with others using a particular decisionmaking structure). It violates my freedom of association just as much as if you insisted on me personally delivering your repugnant message; perhaps my decision to do business impersonally, with a huge number of others and using agents who I’m not personally involved with, might dilute some personal privacy rights, but my associational rights are unimpaired.
Nor are there any conflicting rights at issue here. Hawley has no right to publish a book with Simon & Schuster, using Simon & Schuster’s resources, without Simon & Schuster’s consent. As I’ve said above, if Simon & Schuster consented through their contract with Hawley, they’re properly held liable for reneging now. But in the absence of such an affirmative commitment, Simon & Schuster’s decision to not publish Hawley’s book violates no rights of Hawley’s at all, and so a requirement that it serve Hawley would violate Simon & Schuster’s rights without protecting anyone’s rights in return.
In light of this, there is nothing Orwellian about any part of this episode. We all have a right to refuse to associate with those who are repugnant to us, and none of us have a right to associate with those who don’t want to associate with us. Governments may have to treat everyone evenhandedly, but private individuals lack such a requirement. In fact, I’d say that the ability to choose what to do with your own resources without having to justify the reasonableness of your choice to any higher authority—in short, the ability to act arbitrarily with your stuff—is the essence of private ownership of the means of production, and the essence of freedom. Freedom can be appropriately limited to protect the rights of others, but the interest in doing business with an unwilling partner is not one of those rights.
(I don’t necessarily mean here to question the legitimacy of all positive enactments limiting property rights and freedom of association. There are many such enactments, and each might have its own merits; perhaps freedom might be appropriate limited in some contexts, though I think the right for private people to discriminate based on politics is an important right that shouldn’t be infringed. I’m just making the point that these enactments do limit freedom, and that in any event, the default, in the absence of such enactments, has to be freedom of asso
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