Cancel culture is on the wane – so Google data tells us. Reports of people being “cancelled” shot up in the period 2019-2021, search traffic shows, but the term is now starting to feel dated. It appears the “language police” are in retreat, and that has created an opportunity for fresh discussion on the proper limits of free speech.
For American legal scholar Cass Sunstein, there are several factors to take into account. First, the “domain” of speech – and whether you’re dealing with speech in a school, for example, versus society at large.
A second consideration is “the law of group polarisation” – a principle which he first identified in the late 1990s and which has since been observed in studies across the globe. It shows that if you take a group of like-minded people and get them to talk exclusively to one another, “they tend to end up in a more extreme position in line with their pre-deliberation tendencies,” he explains. This “echo chamber” effect is having serious consequences for democracies by accentuating division and conflict.
Sunstein is a regular visitor to Ireland with his wife, former US diplomat Samantha Power, and they holiday each summer in Ballinskelligs, Co Kerry. He is back this month to give a lecture on “campus free speech” – the subject of one of his books – at Trinity College Dublin’s centre for constitutional governance (TriCON).
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An old school liberal who is wary of government limits on individual freedom, he takes inspiration from Abraham Lincoln’s approach to political opponents. “I don’t like that man. I must get to know him better,” said Lincoln. “That’s the right way to be in the world,” says Sunstein.
He is also fond of quoting the oddly-named former US judge Learned Hand when he said “the spirit of liberty is the spirit which is not too sure that it is right”.
But is such liberalism sustainable in an era of Big Tech media manipulation? Sunstein answers the questions as this week’s Unthinkable guest.
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Is there justification for greater regulation of free speech in education settings, given colleges have not only a duty to educate students but also a duty of care?
“It’s fair to say that, because of the academic mission, a university can impose some restrictions that the government couldn’t impose,” he says.
“So if a teacher says something very cruel and harsh to students, the teacher can be told you can’t do that, even if cruelty and harshness are not a legitimate basis for regulation for ordinary citizens ... But still, we have to be very careful about the reason for restriction. If a teacher expresses a vigorous view about, let’s say, the Constitution, or the foolishness of having a constitution, or the weakness of some line of argument in the humanities, that should be strongly protected.”
What about disciplining a student on the grounds that someone else claims to be intimidated or harassed by their speech?
“Campuses need offensive speech. If offensive speech is restricted on campus as such, then freedom is at grave risk. The category of intimidation and harassment – those are both important categories but they have to be sharply limited ... If someone says to another, ‘If I see you again, I’m going to punch you in the nose’, that’s known as a ‘true threat’ in American law, and many nations would allow regulation of that, and that’s fine. But if someone says something, let’s say, very provocative about men and women, or very provocative about the role of genetics in determining intelligence, that’s part of what academic discourse protects.”
Is self-censorship a problem in universities?
“Well, there are some forms of self-censorship that are okay. It might be that people have some view, which is in their heads but they think it’s rude or cruel, and they self-censor it. That’s part of civilisation. But if people are, let’s say, left of centre or right of centre, and they don’t speak out because they think they’ll get in trouble, that’s a very big problem ... If you have a stifling uniformity, then you can’t have truth.”
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Turning to society at large, is there a case for policing the forums where debate takes place due to harm caused by group polarisation?
“Soft regulatory footprint is a very good idea, if there’s going to be any regulatory footprint ... Facebook’s news feed has frequently algorithmed people into group polarisation machines, which is a very bad thing. I wouldn’t want to regulate it. If people want to associate with like-minded others, that’s part of freedom. We could encourage private institutions, including universities, to do what they can to combat group polarisation, and I think this is a very important thing to tell people who run algorithms.”
What about demanding algorithmic transparency from tech companies? Is the EU Digital Services Act a step in the right direction?
“I wouldn’t want to express a view on any particular legislation without studying it long and hard ... Offhand, disclosure requirements designed to disincentivise the use of an algorithm for that purpose [of group polarisation] are on the table. Then we would want to see what the private sector says against them. It’s not enough to say, ‘This would hurt our profits’. That’s regrettable, but that’s not a trump card. We have to know what exactly is the negative effect of the disclosure regime, and what is the positive effect, and then we would have an adult conversation.”
- Cass Sunstein delivers the inaugural TriCON Verdon lecture at TCD on Thursday, April 23rd. For details: tcd.ie/law
