Most Americans agree that we are in a culture war, and most probably agree that temperature is rising. Many see a real possibility of a systemic disruption, despite it being the most enduring political arrangement in the world. With both sides of the political divide hating each other, it seems all but certain that we will have more political violence.

Some major figures of the Left are trying to climb down from their side of the war, with open letters reminding us of our rare culture of unfettered inquiry. Many are concerned about the Ouroboros-esque impact of political correctness and cancel culture on their side, even as they pretend that the people on the other side of the aisle aren’t also getting eaten.

Their abstract and faux-principled defenses of such behavior stand as irrelevant, though. Cancel culture is not about an intellectual argument. It is political power. Like all political power, it comes from one’s side’s ability to hurt the other. Politicians rarely give up such power, nor do mobs.

What ability to hurt? It’s not the fear of losing an argument or being called a racist/bigot/misogynist that stifles expression. Political as it seems, the power of cancel derives from our legal system, which has been co-opted by politics. The hurt is getting involved in a heads-I-win, tails-you-lose lawsuit.

Look no further than this anonymous byline to know the extent of the power which gets its way from censorship. 60% of us feel our opinions on race cannot be expressed for fear of consequences. Those consequences are rarely political.

That fear comes despite a system of structural guarantees of freedom of expression, born of centuries of unique latitude in expressing it. Censorship power has never been put to any vote, and can’t be, because it has little real popularity. It has little real popularity because it profits the few and harms the many.

The fear exists because of the way lawsuit risk has evolved: most employers have employment-at-will policies which protect them from employees who present a threat to their public face for unbecoming conduct. This is not, in and of itself, unreasonable. But now, a virtual mob can be spun up like a tornado, with hurt promised the company that attracts its undesired focus. There is no defense, no remedy, no reparative apology, no objective adjudication process, not even lip service paid to the finding of fact. The employee gets sacrificed for the good of the company.

This makes for a terminable offense absent a definition or policy until the process-that-is-the-punishment legal system plays out. None of the cancelling powers would be inappropriate if we had a fair and inexpensive way to address them. The unbalance comes in the fact that winning truth might take years and cost one’s life savings (not to mention one’s career). Some outlier cases bring liabilities in the tens of millions of dollars. Nobody can afford that sort of outlay.

Since the law also protects workers, we get dueling lawyers. Therein lies the massive cost in rejecting the canceling mob. We all know this, so we preemptively avoid it via self-censorship.

Our moment of clarity should have been the selective exemption from pandemic lockdowns that scientists proffered to George Floyd protests, lockdowns whose economic devastation they felt was justified. No argument exists, and no scientific evidence supports, that a virus can distinguish between a gathering for social justice and a Trump rally, a funeral, or a party, and none has been offered. The contradiction obviously comes from the career-fear of the scientists who dare criticize those possessing cultural power. It’s not the fear of being wrong. Scientists, including physicians, clinicians, and virologists are wrong all the time, and science is highly dynamic and evolutionary. Rather, it’s the fear of losing their career, livelihood, and social standing if they cross the wrong people.

The irony looms large, because standing up for the rights of the oppressed should go hand-in-hand with a higher regard for their risk to the virus. Thus, there should be arguments against concentrated mobs of shouting people. A rational, good faith, best-science argument from a virologist carries more weight than that of anyone else, and yet the virologist still loses to the Byzantine whimsies of our legal system.

Like night follows day, just as the Left has weaponized the power, the Right has weaponized the counter: the Trump phenomenon was largely driven by this disturbance in the power equilibrium. Trump swept aside the Republican field in 2016 largely because he refused to play this rigged apology/no forgiveness game. He was popular because he would never be on the defensive. He was the right narcissist in the right place and the right time. This partly explains the paradox of speaking truth-to-power despite constantly lying that is Trump.

Like all solutions to the distortions created by political violence, we have to parse the difference between what should be done and what can be done. A law might insulate an individual’s social media musings from being considered “speaking” for his company. But, since so many race-discrimination workplace lawsuits involve divining intent, and since social media is seen as a window into the “secret, inner, unexpressed” mind, lawyers will resist changing the laws that make it more profitable for them to be lawyers, no matter their politics. A broader reform of the legal system, that would address not only this but many other ills, is unfeasible for the same reason.

Libertarian ethics also stand against proposing yet more laws, especially given how over-lawed and over-lawyered we already are. What if those countering laws create other onerous unintended consequences, as they certainly will?

A wasteful legal arms race would continue to exist. Unfortunately our current system has no more room for open spaces free of government/legal interference, so there is no other way to counter bad laws that curtail free speech.

It is striking that we will consider changes to the system that has been the framework for the greatest political stability man has ever known (race crimes aside) before we will consider de-fanging the lawyers that erode the Constitutionally assured freedoms of expression that are cornerstone of our prosperity.

All wars make arms races. So, expect the political knives to get longer. This profits no one but the knife-fighters (who, paradoxically, face almost no risk from their knife-fighting ways. About 90% of them routinely keeping their jobs).

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