The Right to Forget: The First Amendment, Internet, and Cancel Culture

-- By AhiranisCastillo - 29 Nov 2023

In the digital age, the vast power of speech has taken a new dimension. The average social media user can have hundreds of followers, meaning that at the tap of their keyboard their words can impact more people than possible in any previous era. This reach is tenfold for celebrities and public figures who can disseminate their opinions and endorsements to millions of people from their accounts. This broad reach that the individual now has creates new questions about its intersection with the First Amendment as well as the phenomenon of cancel culture. As social media platforms become an epicenter of public discourse, individuals find themselves navigating a complex world where the stakes of speech are higher than ever before.

How Cancel Culture Changes the nature of Censorship

The First Amendment has long been the protector of robust public discourse. But while the First Amendment traditionally shielded individuals from government censorship, the digital age introduces a new player: the online public.

Cancel culture is a contemporary manifestation of public disapproval. When an individual posts something online that people deem offensive, that person can be “cancelled,” meaning their social media accounts will be boycotted. However, this is usually the least of the cancelled person’s worries as they continue to face damages to their reputation, personal opportunities, and professional endeavors. The internet, with its ability to rapidly disseminate information, magnifies the impact of cancel culture, creating a digital echo chamber where these consequences can be enacted in an instant as more and more users join on the trend of punishing the party at hand.

The first amendment, however, was crafted for the purpose of there being minimal retribution to people’s lives as they exercise their right to speech. Can there be disagreement? Yes. There can also be small scale consequences to speech, like in one’s personal sphere. However, the impact to people’s actual livelihood was, arguably, meant to be negligible.

With how high the stakes for speech have become, this is no longer the case. The fact is the consequences of one's words can instantly reverberate across the digital landscape, affecting not only an individual's online presence but also their real-world opportunities.

Legal Questions Raised by Cancel Culture

As cancel culture becomes a pervasive force in the digital realm, it inevitably raises legal questions regarding its compatibility with the First Amendment. While the First Amendment traditionally protected individuals from government censorship, the question arises: to what extent should it shield individuals from the consequences imposed by the online public?

What has managed to evolve from this sphere is an effective form of censorship which stunts public discourse and instills fear in those who wish to speak. Never has this been more apparent than in the current political climate, where students and professionals are being doxed for their online opinions and facing the repercussions in their work and school lives.

The evolving legal landscape must grapple with the delicate balance between preserving the spirit of free speech and addressing the challenges posed by the unchecked power of cancel culture. If the legislature is too slow in its response, we risk the slow demise of what is the most essential component of public discourse, education, and social reform: the confidence that our speech will not have unchecked consequences on our livelihood.

However, given that the law has often fallen behind on other aspects of speech regulation, like hate speech, there is very little hope that it will be able to keep up with the nuances of the technological shifts in speech. Still, it’s increasingly more important to ponder where public discourse is headed in such a high stakes digital environment.

Conclusion: Navigating the Intersection of Speech and Accountability

As technology continues to advance, legal frameworks must adapt to ensure that the principles of free speech are preserved while acknowledging the unique dynamics of the online environment. Finding a balance between privacy, accountability, and the right to express oneself freely in the digital era is a pressing task—one that requires careful consideration of legal, ethical, and societal dimensions.

What is the argument about language, history, or role in the larger constitutional design that your First Amendment discussion wishes to advance? I'm about to start the companion course in which I try to address the subject you are writing about here: it's of greatest interest to everyone, I agree, for the reasons you advance. But that makes it all the more desirable, and would make the next draft much stronger, if any of the modes of constitutional understanding that we usually invoke were involved here.

Suppose for a moment that a person (call him Eben) lives a complex and visible life in the Net: speaks, writes, publishes, thinks his own thoughts and responds to other peoples', teaches, learns, researches, and informs himself constantly, but never uses "social media." Eben has never possessed or used a Google ID, has never used Facebook, Twitter, !!inkedIn, Instagram, or any other platform service. "Cancel culture" still exists of course. The only reason Eben can disregard it entirely is that he has tenure. But has the First Amendment changed for him? In which ways? Why aren't you he?

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