Canceling Monsters

If you want to make a lawyer shiver, walk up to one and say the words “balancing test.”

It never fails. I encourage attendees at the next Dispatch event to try it on Sarah Isgur and see. I haven’t practiced law in 20 years and I still tense up when the phrase is used.

In legalese, the opposite of a balancing test is a bright-line rule. Lawyers like bright-line rules because they’re clear, and clarity makes advising clients easy. A famous example is the holding in Miranda v. Arizona: If a criminal suspect in police custody isn’t advised of his right to remain silent before confessing, his confession isn’t admissible in court.

Simple. Clear. There’s the line; don’t cross it.

On the other end of the jurisprudential spectrum is—deep breath—a balancing test. Instead of drawing a line, courts balance competing interests against each other and just sort of … intuit the relative weight and merits of each. The average test will include a framework of “factors” to guide the analysis, providing a simulacrum of intellectual rigor. But in practice, a balancing test gives the judge enormous leeway to arrive at whatever ruling he or she likes. Reasonable people applying balancing tests can—and routinely do—reach different yet perfectly reasonable conclusions about how the interests at stake balance.

Balancing tests are the enemy of clarity, and thus the bane of lawyers. They’re neither simple nor clear. But that’s life for you; it’s messy.

Which brings us to the messy business of Hamas and its many Western admirers who’ve spent the last five days end-zone-dancing over headless infants. What consequences, if any, should they suffer for their ghoulishness?

I don’t mean physical consequences. The enemies of civilization are entitled to the benefits of civilization so long as they respect the state’s monopoly on violence. And I don’t mean legal consequences. The First Amendment, in its majesty, unambiguously protects the right of the best and brightest fringe-left Nazis on American college campuses to fantasize about Final Solution 2.0.

I mean professional consequences. In a country that respects free speech as a cultural norm, not just a legal one, what duty do private entities have not to hold an employee’s outspoken bloodlust for innocent Israelis against him?

Should America’s Hamas apologists be “canceled”? And if so, should we apply a bright-line rule in answering that question or a balancing test?

On Sunday a coalition of student organizations at Harvard published a joint statement holding Israel “entirely responsible” for the atrocities committed against its own citizens on Saturday. It contained not a word of sympathy for the victims nor a word of condemnation for the perpetrators. Numerous groups were listed as signatories.

The statement wasn’t unusual. After Hamas’ massacre, a pro-Palestinian student group at Swarthmore similarly affirmed its “resolute solidarity” with the cause and predicted that “the Zionist entity will fall.” Another organization at the University of Virginia explicitly rejected calls for nonviolent resistance and called Saturday’s pogrom “a step towards a free Palestine.” At NYU Law School, the president of the student bar association announced that she refused to condemn “Palestinian resistance” and pivoted to condemning Israeli violence instead. “Palestine will be free,” her message concluded.

Then, on Tuesday, news broke.

Nothing says “banality of evil” like having your enthusiasm for Jewish bloodletting cost you a cushy job at a white-shoe law firm.

The same day, hedge fund manager Bill Ackman revealed that he’d heard from numerous CEOs asking for the names of members of the groups at Harvard that had signed onto the statement defending Hamas’ attack. Why? To make sure that their companies never hired those students, Ackman explained.

Reaction was swift.

As of Wednesday morning, the list of signatories on the Harvard statement had disappeared. In its place was this: “This statement was co-authored by a coalition of Palestine solidarity groups at Harvard. For student safety, the names of all original signing organizations have been concealed at this time.”

It may be true that the students’ safety has been threatened. Passions are running hotter than usual, and at least one prominent right-wing website has publicly identified the alleged leaders of some of the groups that signed the statement. But one can’t help but suspect that the real reason Hamas apologists are going to ground is fear of seeing their heretofore lucrative career prospects evaporate.

Most graduates of schools like Swarthmore, UVA, NYU Law, and especially Harvard have a tacit bargain with corporate America. They get to be radically chic during their stay in the university playpen, and their future employers agree not to hold it against them provided that they leave it behind upon ascending to the very comfortable precincts of America’s professional elite. Screeching about the dispossessed can be forgiven as just another form of campus “experimentation,” but once you put on a tie and cash your paycheck, your priorities are expected to shift accordingly.

So imagine the surprise of the students who signed this week’s statements upon finding out that their bargain has an outer moral bound after all and that overt enthusiasm for war crimes crosses it. And imagine their outright shock upon realizing that “cancellation” isn’t a punishment American businesses reserve exclusively for right-wing thought criminals. Big Law, Wall Street, Madison Avenue, and the media industry may lean left on cultural issues, it turns out, but beheading infants is where they’re apt to get squeamish.

Which leads us to a possible bright-line rule on canceling Hamas apologists. If you’re cheering on mass murder, you’re fair game for cancellation.

Simple. Clear. There’s the line; don’t cross it. You’re free to support the Palestinians, and even the Palestinian cause of ending the Jewish state in the abstract. But once you lurch into “by any means necessary” territory, you should start worrying about your job.

We already apply the same rule in other contexts, don’t we? If you got fired for cheering on the mass murder of African Americans in Jacksonville this summer, some free speech advocates might cry for you. I won’t be one of them.

Businesses have free speech rights too, after all. We don’t want American workers afraid to speak their minds for fear of losing their jobs, but neither do we want American companies stuck keeping a closet Klansman on staff as their customer base evaporates due to some hazy ethic about standing by an employee no matter how abhorrent his opinions might be. One poor hiring decision shouldn’t be a death sentence for an enterprise or a moral crisis for its owner.

If you’re cheering on mass murder, you’re fair game for cancellation. Seems like a good rule!

So why do I find myself preferring—God forgive me—a balancing test instead?

Some conservatives clamoring for Hamas’ defenders to be blackballed or fired will be accused of hypocrisy after having griped for years about “cancel culture.” Because right-wing politics offends the sort of liberal cultural orthodoxy favored by corporate America far more than left-wing politics does, it’s the right that’s taken the brunt of speech-policing at work. To listen to some who carp about it regularly, you’d be excused for thinking they believe cancellation is inherently unjust. Now here they are, hoping to get Harvard students fired from jobs they don’t even have yet.

“You’re not really against cancel culture,” a progressive might say to them. “You’re against cancel culture applied to you. You don’t resent the practice, you resent your inability to apply the practice to your own political ends the way the left has.” And there’s something to that: The entire ethos of right-wing populism, really, is that the right should be as ruthless and illiberal as the left. It’s never, ever a call to learn from the left’s sins and to be better.

But here’s the thing. Everyone thinks cancel culture is justified sometimes, including its right-wing critics. Few on either side of the political aisle would spare an outspoken defender of pedophilia from cancellation. The question isn’t whether someone should ever lose job opportunities for holding terrible opinions; the question is how to be judicious about sorting the worst offenders from those who deserve some grace.

That’s where my balancing test comes in.

Anyone cheering on mass murder is fair game for cancellation. But what if that someone did so when he was, say, 15 years old?

What if he said what he said extemporaneously, in the heat of the moment on social media, rather than after considered deliberation?

What if, instead of cheering on mass murder, he endorsed something more morally contentious? Do we want pro-choice business owners canceling employees for being pro-life and vice versa?

All of that matters to me when weighing the justice of a particular cancellation. I want younger, less mature people to get more slack, lest we ruin promising lives over a bad moment. I want those speaking rashly in anger, off the cuff, to be able to repent without sanction, since there but for the grace of God go all of us. And I want those participating in a live public debate in good faith on a matter that’s plainly unsettled not to suffer hardship for offending the orthodoxy of one side of that debate.

It’s complicated. See why lawyers prefer bright-line rules to balancing tests?

The age of America’s campus Hamas fanboys cuts in their favor. They’re adults, but young ones, and college has a habit of making young adults stupid. It makes them somewhat more sympathetic than, say, 30-year-old Mia Khalifa, who lost her gig at Playboy after she posted exuberantly and repeatedly about Saturday’s attack as it was in progress. Nothing says “Western decadence” like a porn star cheering on fanatic Islamist misogynists—except, perhaps, finding out that Playboy has a keener moral sense than Harvard.

It also makes them more sympathetic than these cretins, who I’m guessing are well into adulthood:

It’s one thing to support the Palestinians. It’s another to support the wanton mass murder of Israelis by Palestinians. It’s yet another to support that murder so avidly that you find yourself valorizing the instruments of murder by converting them into resistance iconography.

If youth were the only factor in this balancing test, the cancellation effort against the campus Hamas apologists might be unjust. But if youth were the only factor, it wouldn’t be a balancing test, would it?

The Harvard kids and their fellow travelers at other schools didn’t speak rashly, without deliberating. They put out lengthy statements that were doubtless workshopped, edited, and reworked before being released. They thought hard about what played out on Saturday in southern Israel. No doubt they saw many of the same videos of the carnage that you and I saw on social media. They digested all of it, and held Hamas blameless anyway.

Hardly any have expressed remorse since. Some far-left members of Congress have been shamed into disowning comrades who marched for a Judenrein Holy Land in New York City on Sunday, but America’s student revolutionaries remain unbowed. One group at Cal State-Long Beach even used an image of a Hamas paraglider, similar to the one used by BLM Chicago, to promote a local rally in support of the Palestinians.

They meant what they said.

And what they said isn’t even subject to public debate—or shouldn’t be, lord knows. “Cancel culture is really about when someone is called out by a mob for transgressing a not-yet-agreed upon norm,” the writer Thomas Chatterton Williams once astutely said. The not-yet-agreed-upon part is key. It’s bothersome to see someone canceled for taking a position in a moral dispute that remains unsettled. By what right, after all, does one side of that dispute impose financial sanctions on the other if both remain within the Overton Window?

But when a moral dispute is settled, cancellation is more tolerable. Don’t fire the pro-lifer or the pro-choicer. But the pedophile advocate? Feel free.

If it’s wrong to cancel the Harvard kids and others like them, it must be because the morality of machine-gunning defenseless Israelis remains a live dispute. The norm against murdering civilians en masse, at least if they reside in the Jewish state, is not yet agreed upon.

And that’s ultimately the point of this week’s pro-terrorist rhetorical excrescences, no? The Hamas apologists on campus reject entirely the idea that what happened on Saturday shouldn’t be normalized. To the contrary.

Sparing them from cancellation means conceding that there’s moral ambiguity to what happened on Saturday. There isn’t. So why should we?

I’m okay with an employer opting not to bankroll the career of a degenerate who believes the victims had it coming. I don’t blame business owners, or parents of school-aged children, for fearing that someone who says Jews deserve to die might eventually do more than just talk about it. I don’t want to live in a country that treats the propriety of pogroms as unsettled, provided that it’s dressed up in argle-bargle about “decolonization.” If a few targeted cancellations convince devotees of mass murder to back slowly away from the Overton Window, I’ll sleep at night.

Our humanity calls for grace toward those who err. To those who condone inhumanity, we owe nothing but the protection of the law and our contempt.

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