There are two distinct but overlapping rights contained within the constitutional right to free speech. The first is the right of the speaker to speak. The second is the right of citizens to hear the views expressed by the speaker. The second may seem implicit in the first, but efforts are now underway to deny citizens the right to hear politically incorrect views expressed by controversial speakers.
Consider the efforts by two Democratic members of Congress to persuade the leading cable and satellite television providers not to carry Fox News or Newsmax. If these coercive efforts were to succeed, Fox and Newsmax would still be allowed to broadcast, but millions of viewers would be denied to right to access them on their televisions.
Or consider “cancel culture,” which is intended to punish speakers who have violated some often undefined norm. But it is not only the “guilty” speakers who are punished, but also the innocent audience that is deprived of the right to hear these speakers present their views.
When Manhattan’s famed 92st Street YMCA canceled me because I was falsely accused of having sex with a woman I never met, the real victims of this modern-day McCarthyism were the audience members who wanted to hear me speak in a venue where I have spoken for more than a quarter of a century. The YMCA admitted that it didn’t believe the false accusation, but it decided it had to cancel me nonetheless because it “didn’t want trouble” from the handful of people who might have protested my appearance.
But what about the hundreds of people who wanted to hear me speak about Israel, but were denied the opportunity to do so? What about their right to listen to me? The protesters, too, have their rights—to refuse to listen to me, and to protest my appearance. But that is not inconsistent with the rights of those who wanted to hear me speak being given that opportunity in the first instance.
The distinction between the right to speak and the right to hear can best be illustrated by reference to a situation that is becoming more common in the age of COVID-19 and Zoom. A foreign speaker who is not a United States citizen has no First Amendment right to speak in the United States. But if he or she is invited to give a Zoom talk by an American audience, that audience has the right to hear the words spoken by that foreigner from a foreign country. There have been several such cases, and I have advocated for the right of the audience to hear speakers whose physical presence has been banned.
Cancel culture directly affects the speakers who are being punished for their purported sins. Among those “canceled” have been some of the world’s greatest musicians, such as James Levine and Plácido Domingo. Whether rightly or wrongly, they have been denied the right to perform to audiences that wish to hear them. Anyone has the right to refuse to listen to the music of these canceled performers, but what about the rights of those who have done nothing wrong and who want to simply enjoy their music and art?
If cancel culture is to become American culture, as increasingly appears to be the case, then a balance must be struck among three factors: the due process and free speech rights of the person to be “canceled,” the rights of those who wish to hear or see the “canceled” person and the interests of those who seek the cancellation. This balance should generally be the struck in favor of the first two rights because those seeking cancellation have viable alternatives to denying the speakers and listeners their constitutional rights: They can refuse to listen, they can urge others to refuse to listen, they can peacefully protest the speaker and they can respond to the speaker. What they should not be permitted to do is deny those of us who disagree with cancel culture—or with the cancelation of a particular speaker—the right to decide for ourselves whom we choose to hear.
In a democracy with an open marketplace of ideas, the right to hear is more fundamental than any purported right to cancel.
Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.
The views expressed in this article are the writer’s own.
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