In Book I of his Discourses on Livy, Machiavelli dedicates chapters 7 and 8 to the theme of accusations, calumnies, and their impact on free republics. As with much of his writing, he praises the Roman Republic for how it dealt with these matters and condemns contemporary Florence. Specifically, he considers that accusations are an important venting mechanism to be used against a citizen who is alleged to have wronged the republic in some way. If such a mechanism does not exist, Machiavelli argues, then factions will form in the republic and lead to the potential intervention of a foreign power on the side of one of the factions.

According to Machiavelli, the Roman Republic had a mechanism for making public accusations, but it also had a mechanism for punishing false allegations, or calumnies, which the Florentine dubbed “pernicious.” The difference between accusations and calumnies is that accusations are made before a tribunal and tested whereas calumnies are committed in private and spread through the marketplace and public spaces without the benefit of formal evidence or hearing. Accusations were brought before “magistrates, peoples, councils” while calumnies occurred in “piazzas and loggias.”

In Rome, a process was in place requiring accusers to come before a hearing and present their evidence. In other words, private calumnies were not allowed; an accuser was compelled to put evidence forward in a public forum or suffer the consequences. Machiavelli provides the example of Manlius Capitolinus who made false allegations against Furius Camillus and ended up thrown from the Tarpeian Rock on the south slope of the Capitoline Hill. By contrast, Florence lacked the means to deal with calumnies and failed to allow for public accusations resulting in the endless factional fighting and foreign interference for which Italian Renaissance city-states were famous.

The potential comparisons to our current state of affairs and the phenomenon we call cancel culture should be obvious. Today, a range of allegations are made against would-be offenders of what is deemed acceptable speech by cancelers on the left and the right. As with ancient calumnies, these allegations are not made before tribunals or in formal courts but in the realm of social media directed against the character of the accused often on the basis of inoffensive speech. Additionally, the allegations usually involve a mobbing or swarming effort with ritualistic patterns to provide as much collective weight to the attacks as possible. Luke Sheahan has applied the sociological notion of “degradation ceremony” to this aspect of cancellation.

But if Rome had the means to deal with calumnies and Florence did not, then where do we stand today? What legal mechanisms do we have in place to deal with cancellation? And do we even want legal mechanisms to address cancellation? My intention is to look at the debates over legal responses to cancellation and to consider what areas of law may be useful to address cancellation. My focus will be on legal mechanisms in the United States, the United Kingdom, and Canada.

Counter-Speech

When the subject of cancel culture is broached, those who doubt its existence usually retort that cancellation is simply holding individuals accountable for their hateful and offensive words. Apart from the concerning sentiment that so readily ties speech to harm and the disturbing psychological motivations wrapped up in this view, there is a legal basis and legalistic mindset at work here. In the United States, the First Amendment is seen as the bulwark protecting free speech. Those who defend cancellation argue that they are simply engaged in protected speech—calling for someone to be fired because of a past tweet the mob deems offensive is itself an act of free speech. This is the notion that silencing someone’s hateful speech is free speech. It is not a particularly satisfying argument, but it is important to see how it plays out.

What we are discussing here is what the courts have called “counter-speech,” which differs from hate speech in that it constructively seeks to challenge contesting speech without imposing a disciplinary regime. This is speech that is protected in the US under the First Amendment and is described as speech that calls out or critiques other allegedly offensive speech. In this regard, it has significant political importance in that it provides an alternative to a position and gives voice to certain groups that may have been marginalized or who are being targeted socially. Recently it has been used by many on the left calling for equality for various social groups, but it has also become an important—though perhaps less effective—tool against growing antisemitism in the wake of the October 7th Hamas attacks on Israel.

Counter-speech was recently endorsed by the Supreme Court of Canada (SCC) in the Canadian case of Hansman v. Neufeld. This 2023 case involved an application by a defendant in a defamation lawsuit to have the case thrown out on the basis that the defendant’s speech was “fair comment” and that it was counter-speech that should be protected in the public interest. The matter itself concerned a public school board member who had criticized gender ideology. In response, the defendant, a gay man, accused the board member of being transphobic and hateful. The board member sued for defamation and the defendant’s application to have the lawsuit thrown out made its way to the SCC after contradictory findings in the lower courts. While the details are relevant to the outcome, I want to focus on the Court’s rationale for finding against the plaintiff and throwing out the defamation lawsuit.

In its decision, the Court cited the importance of counter-speech as a mechanism used by traditionally marginalized individuals, in this case, a member of the LGBT community, to contest allegedly harmful speech. The Court specifically noted that transgender individuals have suffered significant historical oppression and that it is commensurate with the equality provisions of the Canadian Charter of Rights and Freedoms to protect, and even amplify, their counter-speech. There is a caveat here in that the Court’s decision was based on a balance between the plaintiff’s harm and the importance of protecting counter-speech. In this instance, though defamation on its own implies damages, the plaintiff could point to no substantive financial or personal loss, such as termination of employment, as a result of the defendant’s speech.

In reaching its decision, and we should note there was a dissenting voice, the Court relied on an old saw: the marketplace of ideas. Referring to American precedent from Justice Brandeis’ decision in Brandenburg v. Ohio, the SCC fell back on the notion that more speech is better, arguing that the defendant’s counter-speech had the potential to deter speech deemed hateful, not that it was clear that the plaintiff’s speech was, in fact, hateful.

I would suggest there are some important points the Canadian Court missed in its decision, points that Machiavelli could have certainly made known to them. Specifically, what we see at work here is a legalistic interpretation based very much on what the Florentine called the “piazzas and loggias.” The SCC relied on what might be considered a purely functionalist understanding of speech in a manifestly apolitical marketplace. In short, the Court placed the formalism of speech above its substance on the basis of privileging the speech of a faction, albeit one the Court deemed historically marginalized.

A Free Speech Culture

There are two responses to this approach that I would like to consider. Before jumping into those, I would point out that some defend using counter-speech but explicitly distinguish it from cancel culture, something the Canadian Court did not do. Nadine Strossen, Professor Emeritus of Law at New York Law School, and Pamela Paresky, Senior Fellow at the Network Contagion Research Institute, argued in a November 2023 essay in Time against a general use of cancellation and censorship when confronting antisemitism, and in favor of counter-speech. I would argue that in their implicit distinction is an awareness of the need for a free speech culture that goes beyond the legalistic interpretation given to the marketplace of ideas by the SCC.

The concept of a free speech culture is described by Greg Lukianoff and Rikki Schlott in their recent book, The Canceling of the American Mind. As they explain it, a free speech culture transcends and is broader than the simple speech protections in the First Amendment which can ultimately be used to protect canceling speech. Indeed, they discuss the concept in the context of a debate that occurred between Lukianoff and First Amendment attorney, Ken White. White makes a number of contentions, including that free speech laws are sufficient to protect any speech, including speech that mobs or leads to the termination of a target. Notably, White takes the same approach to free speech law as the SCC, stating: “Cancel Culture and denunciation of Cancel Culture are competing norms in the protected marketplace of ideas. You can’t burn down the marketplace in order to save it.” For White, as for the Canadian Court, cancellation and those who oppose it simply represent competing ideas in the piazzas and loggias. From a purely legalistic perspective, they see both as indifferent utterances with no real political consequence except in the case of the SCC, where one of the utterances is proffered by a historically oppressed group. In effect, White and the Canadian Court see a neutral law as sufficient in itself allowing competing narratives to battle it out but with a slight tip of the hat to the supposedly oppressed narrative. That this framework may run into some difficulties if there are competing oppressed narratives is a critical theory question that they probably would prefer not to answer.

In response, Lukianoff argues that culture is broader than law and that we must promote a cultural situation in which engagement with conflicting views is desirable. Lukianoff tends to shun censorship in response to cancel culture, though as a lawyer he has himself often used legal means to defend targets. What is at stake in the debate between White and Lukianoff is that those like White who view the legalistic approach as sufficient to protect free speech engage in both an overgeneralization of speech and an extreme particularization that abstracts from the context of speech as social and political. On the one hand, they generalize it by applying strict neutrality to all speech regardless of its content, origin, audience, or target. Indeed, the Canadian Supreme Court said that there is no threat in its approach as all speech is protected. But then in the next moment, the legalist turns to a laser focus on the need to specifically protect counter-speech that emanates from select groups seeking to silence the speech of those they deem unacceptable.

On this point, Lukianoff and Schlott offer a highly relevant observation. Those who deny the impact of cancel culture often treat it as directed at the powerful and elite, usually situated on the political right, by marginalized groups who have otherwise been silenced. In fact, this is far from the standard case. Most often, the target of cancellation is a single individual of normal means with no particular public persona. Additionally, as is common with cancellation efforts, the cancelers constitute an organized mob with resources and media access far beyond the individual target.

While Lukianoff and Schlott argue for a broader free speech culture over against the First Amendment legalistic marketplace, there are those in the common good tradition who actively want to use legal mechanisms to combat cancel culture. Among them are Nanci Karr, Assistant Professor of Business Law at California State University, Northridge. In a 2020 article in the Catholic University Journal of Law and Technology, Karr argues that targets of cancellation might have recourse to the torts of interference to protect their interests. The implicit assumption here is that most harms caused by cancellation involve loss of employment, hence it is torts related to employment contracts that could be the most useful to protect targets and challenge cancellation. Further, unlike the tort of defamation which is difficult to prove and often not all that lucrative outside the US, the interference torts are based on a loss of contractual benefit that is also much easier to assign a monetary value.

In the United States, most states recognize three torts of interference, and some versions of these exist in Canada and the UK. The American versions are adaptable and include: 1. interference with an existing contract (often an employment contract); 2. interference with business relations (which is broader than an existing contract and may include future contracts); and 3. interference with an economic advantage. In general, each of these can be used by a target to seek damages from cancelers, especially where the target can point to specific communications with an employer or business associate who has then terminated the contract or refused to enter into future contracts.

Conclusion

Similarly, given that target damages are often in the employment context, we are also seeing the canceled appealing to workplace harassment and workplace injury claims in an administrative context to challenge their cancellation. There are a growing number of instances in this regard. In the UK, there is the example of Jo Phoenix, a gender-critical lesbian professor of Criminology at Britain’s Open University. Phoenix recently won a case before England’s Employment Tribunal (an administrative process) in which she alleged that she was harassed and bullied out of her position by colleagues and that the university failed to defend her.

In Canada, Richard Bilkszto, a principal with the Toronto School Board, won a workplace compensation claim against the school board for harm he suffered during a diversity, inclusion, and equity training session in which he was attacked and silenced for his liberal views questioning the DEI mantra. Sadly, Bilkszto, who had also launched a lawsuit against the school board, took his own life as a result of the trauma he suffered during the DEI interrogation.

In general, while we may not want to engage in restrictive anti-hate legislation that would bump up against the First Amendment, there are legal actions in addition to creating a free speech culture that could assist targets to recuperate damages from cancelers. These legal remedies, often dealing with workplace-related claims or contracts are less engaged with free speech than defamation claims and have the potential to operate not unlike the tribunals of Machiavelli’s cherished Romans, though without the need to cast the culpable to their deaths from the rocks above. Still, as someone who has been the target of cancellation in Canada and who is litigating for wrongful dismissal, defamation, and interference with contractual relations, I can attest that these processes are slow, expensive, and never fully account for the loss of reputation nor repair the damage to the free speech culture encouraged by Lukianoff and Schlott.

From the perspective of our liberal democracies, free speech culture is likely the best defense we have against cancellation. As with Machiavelli’s public accusations, free speech culture promotes the liberal virtues of civil debate and discussion needed to guard against the calumny that breeds corrosive domestic factionalism and foreign interference.