Civility has a tough row to hoe these days. In our national discourse, on our social media platforms, and even in the legal profession, civility can be fleeting. Instead, pejorative criticism unfettered by courtesy or respect has become the norm. Add to that heightened emotions and rhetoric around social justice issues and our national conversations have at times morphed into “cancel culture,” wielded as the weapon of choice against those espousing oppositional viewpoints.
But shouldn’t we embrace civility even more tightly during these extraordinary times? Or has civil discourse been mortally wounded, slinking its way to the corner to die?
Cancel Culture vs. Critical Culture
Public dialogue increasingly references cancel culture (aka call-out culture), although there may not be a broad understanding of its meaning. Merriam-Webster describes cancel culture as the “removing of support for public figures in response to their objectionable behavior or opinions. This can include boycotts or refusal to promote their work.”
Jonathan Rauch, a senior fellow at the Brookings Institution and contributing writer for The Atlantic, views cancel culture as responding to what is deemed unacceptable speech or behavior with punishment, de-platforming, moral grandstanding, and manipulating social or media environments to isolate and intimidate the speaker and those who support them.
In contrast, Rauch says a critical culture, or a culture that emphasizes critical inquiry, uses robust debate to make a point or correct speech or behavior rather than to punish the speaker. In critical culture, dissent is tolerated – it isn’t silenced. Critical culture sees no value in people fearing the ramifications of speaking up. Rhetoric using ad hominem and accusatory labels are discouraged in favor of listening, reasoning, and avoiding personal attacks. In other words, critical culture favors the civil exchange of ideas.
How does cancel culture relate to civility? As I have written before, incivility isn’t only a lack of courtesy or politeness in the way that something is communicated, but it’s also depriving another of the opportunity to communicate and be heard. While civility can thrive in the robust debates of critical culture, cancel culture seems to be incivility on steroids.
Lawyers and Cancel Culture
As incivility has no place in the practice of law, a fortiori, and cancel culture doesn’t either. Under the Rules of Professional Conduct, in representing a client, lawyers cannot “use means that have no substantial purpose other than to embarrass, delay or embarrass” someone and must refrain from any behavior “intended to disrupt a tribunal.” In other words, lawyers have an ethical obligation to focus on the merits of the matter and should not use intimidation tactics to silence opposing viewpoints.
But what about behavior outside of the representation of clients, where the ethical rules are murkier? Recently, State Bar of Texas President Larry McDougal came under sharp criticism for accusing a person wearing a Black Lives Matter T-shirt to a polling place of electioneering, comparing the act to a case in which wearing a MAGA hat was considered electioneering. State bar leaders and many Texas lawyers swiftly called for McDougal to step down. He apologized in a video.
Mike Whelan unpacks this situation in the “Canceling Culture” episode of his Lawyer Forward podcast. Whelan says the public outcry over McDougal’s comments doesn’t cleanly fit into cancel culture’s traditional power struggle narrative, i.e., the powerless many becoming as powerful as a person or an organization in a prominent position by banding together.
However, McDougal’s comments follow a pattern and were just one in a series he had made in favor of “forceful uses of police power.” According to Whelan, this narrative was confirmed when members of the public, who were unhappy with McDougal’s apology, looked into his history and found additional inflammatory statements, including one that equated Black Lives Matter to a terrorist group.
During a recent meeting of the State Bar of Texas’s board of directors, McDougal was given until Sept. 24 to outline a plan to address the discord created by his online posts. It remains to be seen if McDougal’s history of provocative comments will result in serious long-term consequences, i.e., cancellation.
Use Civility to Cancel Cancel Culture
Lawyers have a special responsibility for the quality of justice. As the Preamble to the Rules of Professional Conduct puts it, lawyers “should further the public’s understanding of and confidence in the rule of law and justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
To the extent that cancel culture inhibits a discussion of ideas in the public square—which has devolved to social media—it undermines our constitutional democracy.
So, how can lawyers help? In conversations with your family, friends, colleagues, and clients, whether it be in person or virtual, insist on these rules:
- Define the language. Lawyers are trained to make sure everyone is clear on the meaning of the language used in documents and to exploit ambiguities that benefit our clients. Use that same acumen to clarify the meaning of language at the beginning of public interactions. For example, “What do you mean by cancel culture?”
- Set forth the rules of engagement. Insist on giving and receiving basic civility and respect, for yourself and others. Don’t express anger, pejorative terms, or hyperbole. Keep to the facts and use them to persuade.
- Acknowledge that good people can have differing viewpoints. Holding an opinion different than yours doesn’t mean someone is a bad person. Ask questions of others in an attempt to understand differing perspectives and uncover common ground.
Blake D. Morant, Distinguished Visiting Professor of Law at the University of California Irvine School of Law and Robert Kramer Research Professor of Law at the George Washington University Law School, may have said it best. In a recent interview, Blake commented that more speech, not less, might be just the antidote to cancel culture.
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