25 February 2022

A Tort for "Cancel Culture"

A detailed legal analysis of a way that tort law might be used to pull the fangs of 'cancel culture'. At this point, anything is worth at least a try!

From Ius & Iustitium

By Pat Smith

In his annual address to the Vatican diplomatic corps on January 11, Pope Francis decried the phenomenon of “cancel culture.” The Pope noted that “[u]nder the guise of defending diversity,” “cancel culture” obliterates “all sense of identity, with the risk of silencing positions that defend a respectful and balanced understanding of all sensibilities.” Worse than that, it promotes a kind of thinking that is “constrained to deny history or, worse yet, to rewrite it in terms of present-day categories, whereas any historical situation must be interpreted in the light of a hermeneutics of that particular time, not that of today.” 

One finds examples of the “cancel culture” condemned by the Pope everywhere, with new examples emerging almost daily. Professors and podcasters alike find themselves in the hot seat with astonishing regularity. However, few solutions to “cancel culture” have been identified. The cycle continues. Some prominent professor, executive, or personality says something wicked, foolish, or merely unpopular. The usual suspects of left-wing journalists and Twitter power users find it and boost the signal, often notifying the person’s employer through the phenomenon of “snitch tagging.” The outrage builds in a sort of positive feedback loop. Finally the desired goal is reached and the professor or executive finds herself without a job, without friends, and without prospects. 

At some stage in this process a certain class of conservative commentator intervenes, solemnly castigating the left-wing journalists and Twitter enthusiasts for their insufficient commitment to free speech. These commentators argue, apparently quite sincerely, that the answer to unpopular speech is more speech. While these commentators are often protected by academic tenure and, more relevantly, impregnable fortresses of conservative donor cash, it is not obvious that they have any effect on “cancel culture.” It is not obvious, in fact, that they have any expectation of having any effect. And why should they? Invocations of the First Amendment or the marketplace of ideas are probably not going to impress people who want to get other people fired.

To put it another way: solemn invocations of liberal values are entirely useless to address this phenomenon. In “cancel culture” one finds a pure example of the war of all against all ushered in precisely by the concept of values, as Carl Schmitt explained in The Tyranny of Values. The participants in “cancel culture” have conducted (obviously) a revaluation of all values and the values of free speech and free inquiry have been devalued—indeed, they have been reduced to nonvalues. Insisting upon their status as values will do nothing to affect the new hierarchy of values. Still less will such insistence protect the bearers of the nonvalues at the point of attack.

The legislator, however, bears the responsibility of restraining the unmediated enforcement of values. To put it in perhaps less elevated terms, since the discourse is incapable of restraining “cancel culture,” the task falls to legislators and courts. Recent research suggests that an avenue is open to legislators and courts to do precisely that. As we awaken from the libertarian dreams of recent decades and rediscover state power, the restraint of “cancel culture,” particularly by legislators, presents an opportunity to further the common good through law.

* * *

Writing in the Catholic University Journal of Law and Technology, Nanci Carr, a professor of business law at California State University, Northridge, noted in 2020 that tort law may well provide the answer to online campaigns aimed primarily at affecting employment (Nanci K. Carr, How Can We End #CancelCulture—Tort Liability or Thumper’s Rule?, 28 Cath. U. J. L. & Tech. 133, 139–40 (2020)). She identified a category of torts that seem to fit the bill: the intentional interference torts. There are currently three kinds of intentional interference tort: intentional interference with an existing contract, intentional interference with business relations, and tortious interference with an economic advantage. 

At the risk of producing a torts outline, a brief rehearsal of the elements of a couple of the interference torts will provide some clarity for the concept. The elements of tortious interference with a contract are (1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant’s knowledge of that contract, (3) defendant’s intentional procurement of the third party’s breach of the contract without justification, (4) actual breach, and (5) damages. 

Similar to the elements of tortious interference with a contract is tortious interference with prospective economic advantage or business relationship. The elements of such a claim are similar to the elements of tortious interference with a contract: (1) the plaintiff has a business relationship with a third party; (2) the defendant knew of the relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and (4) the defendant’s interference caused injury to the business relationship. 

The idea of intentional interference is, therefore, clear: the plaintiff has some kind of relationship with a third party, the defendant knows of the relationship, and the defendant does something wrongful to break it up. Professor Carr notes that the “something to break it up” has to be wrongful beyond the mere fact of interference. Some jurisdictions, like Indiana, hold that, at least in the case of wrongful interference with a business relationship, the act must be illegal. E.g.Watson Rural Water Co., Inc. v. Ind. Cities Water Corp., 540 N.E.2d 131, 139 (Ind. Ct. App. 1989). Mere interference doesn’t cut it. 

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While Professor Carr identifies the intentional interference torts to solve a very modern problem, the fact of the matter is that they have a lengthy history in the Anglo-American legal tradition. Certainly the historical foundation of any particular concept need not be dispositive; the lawmaker is charged with adapting the law to the particular circumstances that obtain in a given country, among a given people, at a particular time (ST I-II q.96 a.1 co.). Nevertheless, a firm historical foundation ought to give legislators in particular more confidence in addressing “cancel culture” through state power. 

The modern history of these torts is well known. In Lumley v. Gye, 2 Ell. & Bl. 216 (1853), the defendant, Frederick Gye, proprietor of the Covent Garden Theater, lured the famous singer Johanna Wagner away from her exclusive contract with the plaintiff, Benjamin Lumley, to sing at his establishment, Her Majesty’s Theater. Naturally Lumley took it amiss and took Gye to court. The court found in his favor, recognizing the tort of interference with a contract; that is, inducing a third party to breach an existing contract. 

But the history of the general concept is even older. Blackstone noted that at common law an action would lie if the defendant hired the plaintiff’s servant before the expiration of the plaintiff’s agreement with the servant (3 Comm. *142) Inducing the servant to breach the contract with the plaintiff was, in the eye of the common law, an injury to the plaintiff, who had purchased the servant’s services for a fixed time (ibid.). The justices in Lumley v. Gye discussed this common-law tort in expanding the rule to cover the situation in that case. 

Blackstone’s discussion of the limited tort of interfering with employer-servant relations should, in fact, be considered especially significant in the American tradition. Professor Albert Altschuler suggested that Blackstone ought to be considered the “baseline, or shared starting-point, of American legal thought” (Albert W. Altschuler, Rediscovering Blackstone, 145 U. Pa. L. Rev. 1, 2 (1996)). This view has been echoed by the Supreme Court, especially with respect to the Framers. E.g., District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008). 

There were also older cases that pointed toward the modern intentional interference torts. In Garret v. Taylor, 79 Eng. Rep. 485 (K.B. 1620), the defendant threatened the customers of the plaintiff’s quarry with physical violence and lawsuits. In Keeble v. Hickeringill, 103 Eng. Rep. 1127 (1707), the defendant used a shotgun to scare ducks away from the plaintiff’s pond, which was intended to catch ducks. Finally, in Tarleton v. McGawley, 170 Eng. Rep. 153 (K.B. 1793), the defendant fired his ship’s guns on Africans on shore to dissuade the Africans from trading with the plaintiff. In all three cases, judgment was entered for the plaintiff. 

The intentional interference torts seem to be altogether consistent with the classical tradition, too. Tale-bearing and backbiting—susurratio and detractio—are contrary to justice. The seriousness of such a sin, a sin against one’s neighbor in the final analysis, is determined by the injury inflicted on the other person (ST II-II q.74 a.2 co.). There is a certain severity in an immoral act intended to deprive a man of external goods or the means of acquiring and sustaining external goods (ST II-II q.73 a.3 co.). But one cannot live without friends, cf. In VIII Ethic. L.1, nos. 1539–40, so tale-bearing and backbiting are especially grievous insofar as they are intended to deprive a man of his friends (ST II-II q.74 a.2 co.). An immoral act intended not only to deprive a man of external goods and the means of acquiring and sustaining external goods but also to blacken his good name and drive his friends away from him is, on Aquinas’s account, particularly serious (ibid.). 

It is always objected at this point that the law ought not to restrain all vices (cf. ST I-II q.96 a.2 co.). That is certainly true. It is the purpose of the law to restrain those vices that most people can refrain from engaging in and that are to others’ injury (ibid.). Vices that are intended to deprive a man of his good name and therefore his friends are precisely the sort of vice that ought to be restrained by the law. Most people can refrain from blackening a man’s good name, with the intent of depriving him of his work and his friends, though. Given the pernicious scope of “cancel culture,” the restraint of such behavior by law seems more compelling than all manner of other laws that are entirely uncontroversial. 

One finds therefore extensive support for this cause of action in the classical legal tradition and in the particular specification that tradition that is often called the Anglo-American common law tradition. Circumstances have changed since 1620 and even since 1853. Where once scaring business away from a quarry or poaching a famous singer away from an exclusive engagement might have been the most common form of interference with a contractual relationship or business relationship, today more or less organized groups attempting to cause the termination of an employee for that employee’s views is much more common. The law should take account of this development (ST I-II q.96 a.1 co.). 

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Professor Carr’s suggestion therefore has much to recommend it on its face. “Cancel culture” is always predicated on some sort of contractual or business relationship. The subject is often a professor or employee of (or at least in some contractual relationship with) a prominent institution or corporation. The participants bring unattractive information to the attention of the employer precisely to obtain the termination of the employment relationship or disciplinary action against the subject. The participants, through the charming phenomenon of “snitch tagging,” indicate that they are aware of the employment relationship. 

The intentional interference torts may well provide an avenue to address “cancel culture.” However, expecting courts to take the lead in extending intentional interference torts to cover instances of “cancel culture” may not be realistic. For one thing, courts must decide cases and cases require plaintiffs. There are as many subjective considerations behind a lawsuit as there are plaintiffs. And plaintiffs who have been “canceled” present unique challenges, such as unpopular views, existing trauma, and the fact that they may be asking for extensions of the existing law. 

On the other hand, nothing prevents state legislatures from recognizing the tort by statute. All sorts of causes of actions originated in the common law and were later recognized by legislatures. And legislatures are of course free to vary—either by expansion or by limitation—from the common law confines of a cause of action. It would be relatively easy for a legislature to recognize the intentional interference tort, making such tweaks as may be necessary to extend the tort to cover “cancel culture” actions. Certainly there would be things that needed to be worked out, such as the interplay of such a tort and the First Amendment. However, that development is precisely the sort of thing judges do (and like to do).

It would, for example, be easy for a legislature to enact a statute that provided “An individual who has been discharged from employment or other contractual relationship may bring an action against a person who knew of the employment or other contractual relationship and brings the beliefs, opinions, statements, or views of the individual to the attention of the employer with the intent to cause the termination of the employment or other contractual relationship.” Obviously, such a statute would require certain definitions and other provisions. However, such a statute would be well within the broad currents of the intentional interference tort.

Additionally, a legislature could provide for damages by statute. After enacting the language above, the legislature could provide that “An individual who prevails in an action under this chapter may recover the greater of economic and noneconomic damages proximately caused by the termination of his employment or statutory damages not to exceed ten thousand dollars ($10,000) against each defendant found liable under this chapter.” The damages statute could go on to provide further for attorney’s fees, the costs of maintaining the action, and punitive damages. 

Certainly the statutory language can be fine-tuned to meet the crisis of “cancel culture.” It is one thing, for example, to tell a man’s employer that the man believes that he is entitled to skim off the till at the end of every shift. It is another thing altogether to tell a man’s employer that he believes marriage is between a man and a woman with the intent of causing the man trouble at work. The legislative process, on the whole, is a good forum for drawing the careful lines necessary to protect employees while recognizing the legitimate interests of employers. 

And such statutes may make good political sense. Certainly, the success of political candidates campaigning against critical race theory, most notably Glenn Youngkin in Virginia, suggests that there is some appetite for addressing social issues with state power. Considering the constant examples of “cancel culture,” one would be surprised if statutory responses to “cancel culture” were less popular than statutory responses to critical race theory. 

* * *

Liberal responses to “cancel culture” are wholly ineffective. While certain members of the professoriate might find a certain audience for their repeated invocations of free speech and liberal values, it is obvious that such invocations are effective only within that audience. The progressive journalists and Twitter mobs moving heaven and earth to ensure that every dean and every C-suite executive knows about every expression of an unpopular thought by their subordinates are not interested in impassioned defenses of the marketplace of ideas, least of all from academics who hold views that would get them canceled but for tenure and the largesse of conservative donors. 

However, a renewed focus on state power to address social problems presents an opportunity for legislators to step into the chaos of “cancel culture” and restrain the unmediated enforcement of values through legislation that allows individuals who have been fired as a result of “cancel culture” to seek damages from the enthusiastic participants in “cancel culture.” At a minimum, such legislation would move the debate from the war of all against all, from the realm of values, to an altogether different basis. 

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