In a City Journal article titled “Pushing Back on Cancel Culture,” law professors Robert Delahunty and John Yoo argue that Congress should extend civil rights protections to speech to “limit the abuses of wokeness.” They contend that First Amendment free speech protections should apply to private-sector workers. In other words, companies shouldn’t be able to fire people based on their political speech. They describe the impacts of this in higher education and corporate life. The implications for each institution are fundamentally different, and thus a broad application of the First Amendment to both is unwise.
American colleges and universities are critical to our nation’s economic prosperity, and our institutions of higher education consistently top global rankings (in spite of Ohio State). Ideally, they serve as a bastion of unimpeded debate, allowing the free exchange of ideas in the pursuit of a better society. However, in recent years, the so-called “cancel culture” has permeated these spaces. It has even led to the dismissal of tenured professors, creating the very chilling effect that the tenure system was designed to erase. Despite their critical role in promoting healthy and vibrant discussion, universities have silenced dissenting professors, even when those professors have conducted research every bit as ethical and scientifically valid as their peers. This silencing quashes discussion and leads to an incomplete picture of the world and a distrust of academia, particularly among conservatives.
In a 2018 poll, Gallup found that fewer than half of adults express “a great deal” or “quite a lot” of confidence in higher education. There was a 17% decline in the number of Republicans holding that view in a poll conducted three years earlier. One can only imagine that this trust has declined even further as cancel culture has taken hold on more and more campuses. It is, therefore, necessary that academic staff be given protections against being fired for their speech, particularly when that speech concerns their research. To not do so threatens the very idea of the American university and discourse in our broader society. Delahunty and Yoo already believe that the university has gone too far. In some ways, it has. As a current student at the University of Michigan, however, I am more optimistic. I see the strides that have been made in bringing more viewpoints into academia, and speech protections for professors will ensure that other voices are not lost in that process.
The private sector is different. Colleges and universities provide a forum designed to accommodate the free exchange of ideas. Not so with the private sector. To extend the protections that Delahunty and Yoo propose would cripple the free speech rights of business owners. This should be painstakingly clear to conservatives who advocated for the religious freedom of Hobby Lobby and Masterpiece Cakeshop, for the freedom of speech of Citizens United and the privacy of donors. Extending Title VII protections to employees of private-sector organizations would be a direct violation of the First Amendment.
Delahunty and Yoo make some exceptions to this rule by saying, “Not being a Trump supporter may be a valid basis on which the DNC and maybe even CNN can make employment decisions—but not Apple or Wells Fargo.” On the liberal side, Starbucks is a great example of why the carveouts for political groups aren’t enough. A Trump supporter who wore a bright red MAGA hat to work would be an odd fit for the company and, considering the clientele in many cities, such a person could hurt the company’s sales. Starbucks is not explicitly political, but the corporation has taken many stances publicly opposing President Trump and his policies. This is part of their value proposition to customers, and a ban on political discrimination would be detrimental to their business. On the conservative side, Hobby Lobby attracts people because it supports policies that align with its owners’ Christian faith. To hire somebody who actively advocates for policies contrary to those beliefs would harm Hobby Lobby and infringe upon its owners’ rights to free speech.
To protect the free discourse of our society, we must protect our professors from being fired for dissenting, but we cannot suspend the free speech rights of employers in the name of combatting cancel culture.
