“Cancel Culture” and Criminal Justice

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“Cancel Culture” and Criminal Justice “Cancel Culture” and Criminal Justice

Steven Arrigg Koh

Boston University School of Law

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“Cancel Culture” and Criminal Justice

74 Hastings Law Journal 79 (2022).

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“Cancel Culture” and Criminal Justice

STEVEN ARRIGG KOH

†

This Article explores the relationship between two normative systems in modern society: “cancel

culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in

contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal

justice system. However, the downsides of cancel culture’s structure—imprecise factfinding,

potentially disproportionate sanctions leading to collateral consequences, a “thin” conception

of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain

human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass

incarceration. This Article thus argues that social media reform proposals obscure a deeper

necessity: transcendence of blame through criminal justice reform and, ultimately, collective

emphasis on reintegration after human wrongdoing.

†

Associate Professor of Law and R. Gordon Butler Scholar in International Law, Boston University

School of Law. This Author is grateful to Atinuke Adediran, Chaz Arnett, Darryl Brown, LaToya Baldwin Clark,

Jeff Bellin, Paulo Barrozo, Stephen Cody, Jonathan Feingold, Hiba Hafiz, Genevieve Lakier, Irina Manta, Shaun

Ossei-Owusu, David Pozen, Sandra Redivo, Daniel Richman, Diane Ring, Shalev Roisman, Blaine Saito, and

Katharine Young for their contributions to this Article. He is also thankful for the research assistance of Mateo

Dayo, Evelyn Jackson, Joshua Luger, Brendan Murphy, Travis Salters, Spencer Thompson, and Emily Van

Auken, as well as for the initial contributions of the students in Section 2 at Boston College Law School (Spring

2021).

Electronic copy available at: https://ssrn.com/abstract=4294887

80 HASTINGS LAW JOURNAL [Vol. 74:79

TABLE OF CONTENTS

INTRODUCTION .................................................................................................. 81

I. WHAT IS “CANCEL CULTURE”? ............................................................. 85

A. OLD WINE IN NEW BOTTLES: PUBLIC SHAMING THROUGH

SOCIAL MEDIA ............................................................................... 87

B. CANCEL CULTURE AS GAP FILLING ............................................... 90

1. The Referral Function .............................................................. 93

2. The Shaming Function ............................................................. 95

II. CANCEL CULTURE’S PROBLEMATIC PROCESS ....................................... 97

A. THE STRUCTURE OF CONTEMPORARY CONDEMNATION ................ 97

1. Notice ....................................................................................... 97

2. Evidence and Procedural Fairness .......................................... 99

3. Proportionality ....................................................................... 101

4. The Conception of the Wrongdoer: Beyond

Rehabilitation ......................................................................... 103

B. “MOB VENGEANCE” AND CULTURAL ANXIETY ........................... 105

C. A COMPARISON OF LAW AND CULTURE: THE CASE OF

EUROPE ......................................................................................... 108

III. THE FUTURE OF CANCEL CULTURE: FROM RETRIBUTION TO

REINTEGRATION ................................................................................... 112

A. THE PARTIAL PROMISE OF SOCIAL MEDIA REFORM .................... 112

B. THE NEED FOR DEMOCRATIC RESPONSIVENESS & CRIMINAL

JUSTICE REFORM .......................................................................... 114

C. DEEP STRUCTURAL REFORMS IN AN ERA OF MASS

INCARCERATION ........................................................................... 116

CONCLUSION ................................................................................................... 120

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 81

INTRODUCTION

The term “cancel culture” is ubiquitous in contemporary American life. It

intersects with critical national discourse regarding free speech and censorship,

race and gender issues,

political engagement,

and employee rights,

and has

unsettled university campuses nationwide.

And yet its meaning, structure, and

nature are amorphous. Dictionary.com defines it as “the popular practice of

withdrawing support for . . . public figures and companies after they have

done or said something considered objectionable or offensive.”

Consider the

following cases identified as such:

• An Asian American family at a restaurant in Carmel Valley, California, is

celebrating an aunt’s birthday when a white diner at another table, Michael

Lofthouse, starts yelling anti-Asian obscenities at them and gives them the

middle finger. Once the footage goes viral and Lofthouse is publicly

identified, he announces he is stepping down as CEO of tech company

Solid8.

• During a standup comedy routine, Hannibal Burress reminds his audience

that Bill Cosby has been accused of rape. The clip goes viral and Cosby’s

new television show, soon to air on NBC, is canceled.

Cosby is eventually

. The Editorial Board, America Has a Free Speech Problem, N.Y. TIMES (Mar. 18, 2022),

https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html (citing a poll that eighty-

four percent of Americans said it is a “very serious” or “somewhat serious” problem that some Americans do

not speak freely in everyday situations because of fear of retaliation or harsh criticism).

. Lili Loofbourow, The Cancel Culture Trap: Can Black Lives Matter Accomplish What Me Too

Couldn’t?, SLATE (July 27, 2020, 5:45 AM), https://slate.com/news-and-politics/2020/07/black-lives-matter-

me-too-cancel-culture-blacklash.html; Alia Dastagir, The Problem with Asking the Public To Cancel Woody

Allen, USA TODAY (Mar. 2, 2021, 8:13 AM), https://www.usatoday.com/story/life/health-wellness/2021/02/25

/woody-allen-dylan-farrow-accusations-cancel-culture-me-too-movement/6800198002/.

. Matthew Ormseth, Decrying ‘Cancel Culture,’ State Senator Seeks To Make Political Affiliation a

Protected Class, L.A. TIMES (Feb. 16, 2021, 5:56 PM), https://www.latimes.com/california/story/2021-02-16

/decrying-cancel-culture-state-senator-seeks-to-make-political-affiliation-a-protected-class.

. Nick Martin, At-Will Employment Is the Real Cancel Culture, NEW REPUBLIC (June 17, 2020),

https://newrepublic.com/article/158194/at-will-employment-real-cancel-culture.

. A Letter on Justice and Open Debate, HARPER’S MAG. (July 7, 2020), https://harpers.org/a-letter-on-

justice-and-open-debate/; John McWhorter, Academics Are Really, Really Worried About Their Freedom, THE

ATLANTIC (Sept. 1, 2020) https://www.theatlantic.com/ideas/archive/2020/09/academics-are-really-really-

worried-about-their-freedom/615724/.

. Cancel Culture, DICTIONARY.COM (July 31, 2020), https://www.dictionary.com/e/pop-culture/cancel-

culture/.

. Isabel Togoh, Tech CEO Michael Lofthouse Steps Down After Being Filmed Hurling Racist Insults at

an Asian Family, FORBES (Apr. 14, 2022, 2:05 PM), https://www.forbes.com/sites/isabeltogoh/2020/07/12/tech-

ceo-michael-lofthouse-steps-down-after-being-filmed-hurling-racist-insults-at-an-asian-family/?sh=6918112d1

f5e.

. Colleen Shalby, NBC Cancels Bill Cosby Project in Wake of Sexual Assault Allegations, PBS:

NEWSHOUR (Nov. 19, 2014, 5:03 PM), https://www.pbs.org/newshour/nation/nbc-cancels-bill-cosby-project-

wake-sexual-assault-allegations#:~:text=NBC%20canceled%20plans%20to%20go,of%20a%20Cosby%20

comedy%20special; Lesley Goldberg & Mikey O’Connell, TV Land Pulls ‘Cosby Show’ Repeats, HOLLYWOOD

REP. (Nov. 19, 2014, 3:21 PM), https://www.hollywoodreporter.com/tv/tv-news/tv-land-pulls-cosby-show-750

530/.

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82 HASTINGS LAW JOURNAL [Vol. 74:79

prosecuted for and convicted of sexual assault, though his conviction is

later overturned on appeal.

• Jeopardy! contestant Kelly Donohue trends on Twitter after making a

three-fingered hand gesture that viewers believe to be linked to white

supremacy. Nearly 600 former Jeopardy! contestants sign a public protest

letter, decrying hate and asking the show why the gesture was not edited

out. Subsequent investigations reveal that Kelly was actually gesturing the

number three to symbolize his third consecutive win on the show.

Such examples highlight various forms of the cancel-culture phenomenon.

First, cancel culture may sanction individuals for past conduct through collective

online shame, triggering negative real-world consequences. Second, it may

highlight past wrongdoing and trigger formal criminal prosecution regarding

conduct—such as sexual assault—that has historically been under-prosecuted.

And finally, due to its imprecise process, it may misperceive wrongdoing

altogether.

At the same time, we are living through a tumultuous era for U.S. criminal

justice. In our era of mass incarceration, the disproportionate prosecution of

communities of color has severely damaged generations of American lives.

And yet the U.S. criminal justice system systematically fails to provide

accountability for police violence,

individuals who have perpetrated sexual

assault,

and those who have engaged in anti-Asian violence.

Meanwhile,

some scholars call for restorative justice or criminal abolition, emphasizing

reintegration over retribution.

In this context, public discourse views cancel culture through two distinct,

opposing lenses: either it is a noble form of “accountability culture,” or it is a

dangerous brand of “mob justice.” This Article uses a criminal legal framework

. Joe Flint & Suzanne Vranica, Bill Cosby’s Return to TV Is Canceled, WALL ST. J. (Nov. 19, 2014, 3:48

PM), https://wsj.com/articles/netflix-shelves-bill-cosby-comedy-special-after-sexual-assault-accusations-1416

380591; Elahe Izadi, Hannibal Buress Unwittingly Reignited the Bill Cosby Firestorm. Here’s How He Dealt

with the Aftermath, WASH. POST (Apr. 26, 2018, 5:12 PM), https://www.washingtonpost.com/news/arts-and-

entertainment/wp/2018/04/26/hannibal-buress-unwittingly-reignited-the-bill-cosby-firestorm-heres-how-he-

dealt-with-the-aftermath/; Graham Bowley & Julia Jacobs, Bill Cosby Freed as Court Overturns His Sex Assault

Conviction, N.Y. TIMES (Oct. 14, 2021), https://www.nytimes.com/2021/06/30/arts/television/bill-cosby-release

-conviction.html.

. Ben Smith, I’ll Take ‘White Supremacist Hand Gestures’ for $1000, N.Y. TIMES, https://www.ny

times.com/2021/05/16/business/media/jeopardy-hand-gesture-maga-conspiracy.html?referringSource=article

Share (Aug. 11, 2021).

. See Kari Hong, A New Mens Rea for Rape: More Convictions and Less Punishment, 55 GEO. L.J. 259,

262 (2018).

. See generally PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN (2017) (reviewing the extent to

which the U.S. criminal justice system is institutionally constructed to control African American men).

. See generally Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth

Amendment Pathways to Police Violence, 105 CALIF. L. REV. 125 (2017).

. See generally Hong, supra note 11.

. See generally Angela R. Gover, Shannon B. Harper & Lynn Langton, Anti-Asian Hate Crime During

the COVID-19 Pandemic: Exploring the Reproduction of Inequality, 45 AM. J. CRIM. JUST. 647 (2020).

. See generally, e.g., Allegra M. McLeod, Envisioning Abolition Democracy, 132 HARV. L. REV. 1613

(2019); Adriaan Lanni, Taking Restorative Justice Seriously, 69 BUFF. L. REV. 635 (2021).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 83

to show that this dichotomy fails to grasp the function and structure of cancel

culture as a normative system in modern society. It argues that cancel culture is

an old phenomenon (public shaming) channeled through a new modality (social

media). As such, cancel culture may rectify over- and under-enforcement in the

U.S. criminal justice system. But the downsides of cancel culture’s structure

reflect deeper, problematic U.S. punitive impulses that characterize our era of

mass incarceration.

While cancel culture is largely unexplored in legal scholarship,

criminal

legal scholarship is ripe to contribute valuable insights on the phenomenon.

Legal scholars and philosophers have long considered law as one of many

normative systems in modern society,

while criminal law scholars analyze the

structure and administration of a public system of punishment for perceived

wrongful conduct.

This Article clarifies how cancel culture functions both in

the shadow of this U.S. criminal justice system and as a distinct sanction. Indeed,

half of Americans view cancel culture as a form of accountability,

though

sixty-nine percent of Americans believe it unfairly punishes people for past

actions.

In light of such perceptions, a criminal law framework is suited to

evaluate cancel culture because of its acuity in addressing questions

of fair notice,

evidence,

proportionality,

and shaming penalties.

Deeper

. See generally, e.g., Renee Nicole Allen, From Academic Freedom to Cancel Culture: Silencing Black

Women in the Legal Academy, 68 UCLA L. REV. 364 (2021).

. See generally JOSEPH RAZ, PRACTICAL REASON AND NORMS (1975); see also Andrei Marmor &

Alexander Sarch, The Nature of Law, STAN. ENCYC. OF PHIL. (Aug. 22, 2019), https://plato.stanford.edu/archives

/fall2019/entries/lawphil-nature/ (“Law . . . is . . . a normative social practice: it purports to guide human

behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is

one of the main challenges of general jurisprudence.”).

. Legal scholarship more generally is also poised to make important contributions to the national debate

over cancel culture, given the uneasy historical relationship between shame and the law. See, e.g., Eric Posner,

A Terrible Shame, SLATE (Apr. 9, 2015, 11:14 AM), https://slate.com/news-and-politics/2015/04/internet-

shaming-the-legal-history-of-shame-and-its-costs-and-benefits.html (“The law has always had an ambivalent

relationship with shame. On the one hand, shaming is the very antithesis of the law. . . . However, legal systems

have also frequently tried to harness the power of shame.”).

. Katherine Schaeffer, How Americans Feel About ‘Cancel Culture’ and Offensive Speech in 6 Charts,

PEW RSCH. CTR. (Aug. 17, 2021), https://www.pewresearch.org/fact-tank/2021/08/17/how-americans-feel-

about-cancel-culture-and-offensive-speech-in-6-charts/.

. Gabriela Schulte, Poll: 69 Percent Say Cancel Culture Unfairly Punishes People for Past Actions,

Statements, THE HILL (Nov. 9, 2021), https://thehill.com/hilltv/what-americas-thinking/580747-poll-69-percent-

say-cancel-culture-unfairly-punishes-people-for.

. See generally, e.g., Samuel W. Buell, Culpability and Modern Crime, 103 GEO. L.J. 547 (2015);

Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. PA. L. REV. 335 (2005).

. See generally, e.g., Richard A. Bierschbach & Alex Stein, Mediating Rules in Criminal Law, 93 VA.

L. REV. 1197 (2007); Doron Teichman, Convicting with Reasonable Doubt: An Evidentiary Theory of Criminal

Law, 93 NOTRE DAME L. REV. 757 (2018).

. See generally, e.g., Alice Ristroph, Proportionality as a Principle of Limited Government, 55 DUKE

L.J. 263 (2005); Youngjae Lee, Why Proportionality Matters, 160 U. PA. L. REV. 1835 (2012).

. See generally, e.g., Dan M. Kahan, What’s Really Wrong with Shaming Sanctions, 84 TEX. L.

REV. 2075 (2006); Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform

of the Federal Sentencing Guidelines, 42 J.L. & ECON. 365 (1999); Toni M. Massaro, Shame, Culture and

American Criminal Law, 89 MICH. L. REV. 1880 (1991).

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84 HASTINGS LAW JOURNAL [Vol. 74:79

questions include the collateral consequences of permanent, publicly accessible

records of wrongdoing;

disparities in enforcement, particularly given the race

and gender of the defendant and victim;

reintegration and restorative justice;

and the broader relationship between criminal justice and culture.

Part I of this Article argues that cancel culture is not, at its core, new. Much

of what the public perceives to be novel is in fact an old phenomenon of public

shaming. What has changed is the medium for such shaming—social media—

which has rechanneled shaming in three critical respects: amplification,

acceleration, and democratization. Part II argues that cancel culture may be “gap

filling,” rectifying over- and under-enforcement in our contemporary era of mass

incarceration. It then considers cancel culture’s potentially problematic process,

structure, and societal effects. Specifically, it argues that many of the perceived

problems with cancel culture—notice and evidentiary issues, proportionality, a

“thin” conception of the individual as beyond rehabilitation, and broader cultural

anxiety—reflect deeper U.S. punitive impulses. Part III considers reform

proposals, arguing that many of the perceived remedies do not cut to the heart

of unaddressed wrongdoing. Finally, this Article argues that an awareness of the

problematic aspects of retributivism—disproportionate, permanent sanctions—

demands a renewed focus on restoration and reintegration.

This Article thus engages with several areas of legal scholarship. First and

most importantly, it intersects with contemporary debates over criminal justice

in an era of mass incarceration, particularly prosecutorial decision-making and

democratic legitimacy. Second and relatedly, it informs scholarship on the

alienation of certain communities from the administration of

contemporary criminal justice.

Third, it builds upon prior debates regarding

legal and normative aspects of online shaming, as well as related debates

. See, e.g., JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD 214 (2015) (discussing the problem of

U.S. criminal record exceptionalism, wherein records of arrest or conviction are permanently, publicly, and

electronically stored, leading to lifelong collateral consequences).

. See generally, e.g., Samuel R. Gross, David Baldus and the Legacy of McCleskey v. Kemp, 97 IOWA

L. REV. 1905 (2012).

. See generally, e.g., Lanni, supra note 16; Bruce A. Green & Lara Bazelon, Restorative Justice from

Prosecutors’ Prospective, 88 FORDHAM L. REV. 2287 (2020); Joanna Shapland, Forgiveness and Restorative

Justice: Is It Necessary? Is It Helpful?, 5 OXFORD J.L. & RELIGION 94 (2016).

. See DAVID GARLAND, THE CULTURE OF CONTROL 4 (2001) (noting that contemporary criminal justice

lacks any settled culture, agreement, or clear sense of big picture regarding criminal justice). See generally, e.g.,

Joshua Kleinfeld, Two Cultures of Punishment, 68 STAN. L. REV. 933 (2016); Steven Arrigg Koh, Core Criminal

Procedure, 105 MINN. L. REV. 251 (2020) (considering the function of criminal procedural rights in cross-border

criminal law enforcement).

. Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 HARV. L.

REV. 1485, 1495 (2016) (“[A]lienation begins between black Americans and the criminal system but then fans

out beyond the criminal system into the relationship between black Americans and the state and society as a

whole—inflaming the country’s racial tensions and creating problems of democratic governance with far-

reaching and unpredictable political effects.”). See generally, e.g., Monica C. Bell, Police Reform and the

Dismantling of Legal Estrangement, 126 YALE L.J. 2054 (2017) (exploring the estrangement that communities

of color feel from police reform and showing the limits of procedural justice reform efforts).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 85

over freedom of expression.

Fourth, it echoes debates in transnational and

international criminal law regarding “impunity gaps,” or cases of individuals

who have engaged in serious criminal wrongdoing but are never held

accountable for such crimes.

And finally, as noted above, it examines cancel

culture as a concrete example of the interrelationship between legal and non-

legal systems in modern society.

To be clear, I am not arguing that cancel culture should be solely analyzed

through a criminal legal lens. The phenomenon may be interpreted through

sociological,

anthropological,

economic,

and other frameworks.

And it

intersects with other legal debates such as freedom of speech.

Nor am I arguing

that cancel culture and criminal justice are the same. Cancel culture is, of course,

distinct from criminal justice in many regards—one is a social-media-based

system of referral and shaming, and the other is a state-driven, institutionalized

public prosecutorial system leading to incarceration or execution. Instead, the

purpose is to bring a novel criminal law perspective to view cancel culture as a

system of collective condemnation operating alongside formal prosecution,

questioning cancel culture’s substance, procedure, and sanction.

I. WHAT IS “CANCEL CULTURE”?

What is “cancel culture”? First named in 2016,

the term transitioned from

populating no Google search data in spring 2018 to reaching unprecedented

. See Posner, supra note 19 (discussing “internet shaming”); Jack M. Balkin, Free Speech Is a Triangle,

118 COLUM. L. REV. 2011, 2037–40 (2018). See generally, e.g., Kate Klonick, Re-Shaming the Debate: Social

Norms, Shame, and Regulation in an Internet Age, 75 MD. L. REV. 1029 (2016) (discussing online shaming and

social norms); DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE (2016) (analyzing cyber harassment

within the realm of civil rights law, and the social norms that must be leveraged to protect victims).

. See, e.g., Steven Arrigg Koh, Foreign Affairs Prosecutions, 94 N.Y.U. L. REV. 340, 352 (2019)

(discussing impunity gaps in international and transnational criminal law); see also generally Steven Arrigg

Koh, The Criminalization of Foreign Relations, 90 FORDHAM L. REV. 737 (2021); Steven Arrigg Koh, Othering

Across Borders, 70 DUKE L.J. ONLINE 171 (2021).

. Hervé Saint-Louis, Understanding Cancel Culture: Normative and Unequal Sanctioning, FIRST

MONDAY (July 6, 2021), https://journals.uic.edu/ojs/index.php/fm/article/view/10891/10177.

. Ligaya Mishan, The Long and Tortured History of Cancel Culture, N.Y. TIMES STYLE MAG. (Dec. 3,

2020), https://www.nytimes.com/2020/12/03/t-magazine/cancel-culture-history.html.

. Helen Lewis, How Capitalism Drives Cancel Culture, ATLANTIC (July 14, 2020), https://www

.theatlantic.com/international/archive/2020/07/cancel-culture-and-problem-woke-capitalism/614086/.

. See generally, e.g., Rocco Chiou, We Need Deeper Understanding About the Neurocognitive

Mechanisms of Moral Righteousness in an Era of Online Vigilantism and Cancel Culture, 11 AM. J. BIOETHICS

NEUROSCI. 297 (2020).

. See, e.g., Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021) (holding in favor of a student

on First Amendment grounds who was sanctioned by her school after criticizing it and its cheerleading squad on

Snapchat); see also generally Kate Klonick, The New Governors: The People, Rules, and Processes Governing

Online Speech, 131 HARV. L. REV. 1598 (2018).

. Rachel E. Greenspan, How ‘Cancel Culture’ Quickly Became One of the Buzziest and Most

Controversial Ideas on the Internet, INSIDER (Aug. 6, 2020, 5:30 AM), https://www.insider.com/cancel-culture-

meaning-history-origin-phrase-used-negatively-2020-7#:~:text=The%20phrase%20was%20popularized%20

only,actions%20or%20statements%20became%20popular.

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86 HASTINGS LAW JOURNAL [Vol. 74:79

popularity in 2021.

Over the course of the last year, its meaning has evolved

considerably: given the speed with which social media networks use, refine, and

debate terminology, the verb “to cancel” is a moving definitional target. In the

lay conception, the process of cancelation unspools in three steps. First, some

individual’s prior conduct, generally perceived as offensive, is posted on social

media through a video, post, picture, or news report.

Second, reports of such

conduct go viral, trending on social media. Amidst this virality, the individual

who engaged in the conduct is identified. Finally, the collective judgment of that

individual leads to concrete consequences in that person’s life; this may include

loss of a job, harassment, and even criminal prosecution. Today, the cancel-

culture process is omnipresent in our cultural discourse and a de rigeur response

to public events.

For example, in the wake of the Capitol riot of January 6,

2021, Twitter users and others immediately began naming the offenders, leading

to the firing of many such rioters before the commencement of any federal

prosecution.

. Google Trend for “Cancel Culture” over the Past Five Years, GOOGLE TRENDS, https://trends

.google.com/trends/explore?date=today%205-y&geo=US&q=cancel%20culture (last visited Dec. 5, 2022); see

also, e.g., Kelsey McKinney, Slate Podcast Host Mike Pesca Suspended Following Internal Discussion About

Use of Racial Slur, DEFECTOR (Feb. 22, 2021, 5:14 PM), https://defector.com/mike-pesca-slate-suspended

(reporting on Mike Pesca’s, host of Slate’s podcast “The Gist,” suspension from the company for comments in

a Slack conversation in which he argued for the usage of the N-word by white people in some contexts); Aja

Romano, The Second Wave of “Cancel Culture”, VOX (May 5, 2021, 1:00 PM), https://www.vox.com

/22384308/cancel-culture-free-speech-accountability-debate. Notably, 2018 is also the year that Facebook

created its “anger” button, which “incentivized the spread of divisive, sensational content and misinformation.”

The Journal, The Facebook Files, Part 4: The Outrage Algorithm, WALL ST. J. (Sept. 18, 2021, 11:30 AM),

https://www.wsj.com/podcasts/the-journal/the-facebook-files-part-4-the-outrage-algorithm/e619fbb7-43b0-

485b-877f-18a98ffa773f. Examples of cancel culture now abound in everyday life. See, e.g., Ginia Bellafante,

Why Did the Dean of the Most Diverse Law School in the Country Cancel Herself?, N.Y. TIMES (Apr. 1, 2021),

https://www.nytimes.com/2021/03/26/nyregion/CUNY-law-school-mary-lu-bilek-racism.html?referringSource

=articleShare; Ryan Parker & Aaron Couch, ‘The Mandalorian’ Star Gina Carano Fired Amid Social Media

Controversy, HOLLYWOOD REP. (Feb. 10, 2021, 6:38 PM), https://www.hollywoodreporter.com/news/the-

mandalorian-star-gina-carano-fired-amid-social-media-controversy; John Bowden, Man Caught on Video

Yelling at Asian Family: “Trump’s Going To F-‑‑‑ You!”, THE HILL (July 7, 2020, 2:56 PM), https://thehill

.com/homenews/news/506227-man-caught-on-video-yelling-at-asian-family-trumps-going-to-f-you; Lyz Lenz,

How a University of Iowa Reply-All Email Became Ground Zero for the Cancel Culture Wars, VANITY FAIR

(Apr. 29, 2021), https://www.vanityfair.com/news/2021/04/how-a-reply-all-email-became-ground-zero-for-the-

cancel-culture-wars?utm_source=pocket-newtab; Dustin Stephens, Cancel Culture, a New Wedge Issue, CBS

NEWS (May 2, 2021, 10:10 AM), https://www.cbsnews.com/news/cancel-culture-a-new-wedge-issue/.

. See MARTHA MINOW, SAVING THE NEWS 12 (2021) (noting how social media may spread news in

communities lacking a local newspaper). Often, social media highlights disparities between certain communities

and the culture discourse within traditional news agencies. See MICHAEL SCHUDSON, SOCIOLOGY OF THE NEWS

14 (2003) (“The news . . . is produced by people who operate, often unwittingly, within a culture system, a

reservoir of store cultural meanings and patterns of discourse.”).

. Shaming and canceling occurred, for example, during the COVID-19 lockdowns. See, e.g., Amanda

Hess, The Social-Distancing Shamers Are Watching, N.Y. TIMES (May 11, 2020), https://www.nytimes.com

/2020/05/11/arts/social-distance-shaming.html (“The internet has long been identified as a breeding ground for

public shame, but the coronavirus has advanced the game.”).

. AJ Willingham & Carma Hassan, People at the US Capitol Riot Are Being Identified and Losing Their

Jobs, CNN (Jan. 9, 2021, 2:35 PM), https://www.cnn.com/2021/01/07/us/capitol-riots-people-fired-jobs-trnd

/index.html. To some degree, the online mobilization was responsive to the widespread observation that such

rioters—who were almost all white—had faced no consequences for their actions, whereas if the same rioters

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 87

This Part defines cancel culture as an old phenomenon (public shaming)

channeled through a new modality (social media). It then identifies how cancel

culture fills accountability gaps alongside the functioning of our contemporary

criminal justice system.

A. OLD WINE IN NEW BOTTLES: PUBLIC SHAMING THROUGH SOCIAL

MEDIA

What is the best way to conceive of cancel culture? First, cancel culture is

an old phenomenon: shaming and ostracization are age-old,

interrelated social forces. Both have always been integral to human societies

—

take, for example, Cain’s punishment after killing Abel,

Roman persecution of

Christians or heretics,

or Napoleon’s exile.

Up until the eighteenth century,

murderers in England were permanently branded on their cheeks until public

authorities determined that it made such individuals more—not less—

likely to become recidivists.

U.S. history is littered with the tragic examples

of the Salem Witch Trials,

lynchings,

McCarthyism,

boycotts,

and HIV/

AIDS stigma.

While, as a formal matter, punishment and public shaming

were black (and particularly if it had been a Black Lives Matter protest), it would have resulted in more arrests,

police violence, and police killings. See e.g., John Eligon, Racial Double Standards of Capitol Police Draws

Outcry, N.Y. TIMES (Jan. 7, 2021), https://www.nytimes.com/2021/01/07/us/capitol-trump-mob-black-lives-

matter.html; Kurtis Lee, Jaweed Kaleem & Laura King, ‘White Supremacy Was on Full Display.’ Double

Standard Seen in Police Response to Riot at Capitol, L.A. TIMES (Jan. 7, 2021), https://www.latimes.com/world-

nation/story/2021-01-07/la-na-washington-capitol-police-attack-race.

. See, e.g., Kleinfeld, supra note 29, at 948; JACOBS, supra note 26, at 209 (“In ancient times, a criminal

conviction was ‘written’ on the offender’s body by branding or mutilation.”); MARTHA C. NUSSBAUM, HIDING

FROM HUMANITY: DISGUST, SHAME, AND THE LAW 234–35 (2004) (“Shame punishments, historically, are ways

of marking a person, often for life, with a degraded identity.”); Posner, supra note 19 (“Shaming has always

been extraordinarily important—often, even more important than the formal legal system.”). Other

contemporary examples include Nazi Germany and China under Mao Zedong. See JON RONSON, SO YOU’VE

BEEN PUBLICLY SHAMED 83 (2015).

. Amy Tikkanen, Abel, ENCYC. BRIT., https://www.britannica.com/biography/Abel-biblical-figure

(Aug. 22, 2022).

. Matt Stefon et al., Christianity, ENCYC. BRIT. (Oct. 18, 2022), https://www.britannica.com/topic

/Christianity.

. Jacques Godechot, Napoleon I, ENCYC. BRIT. (May 1, 2021), https://www.britannica.com/biography

/Napoleon-I/Downfall-and-abdication.

. JOHN BRAITHWAITE, CRIME, SHAME, AND REINTEGRATION 60 (1989).

. Mishan, supra note 34.

. Keri Leigh Merritt & Chris Richardson, History, Civil Rights and the Original Cancel Culture, THE

HILL (Aug. 4, 2020, 4:30 PM), https://thehill.com/opinion/civil-rights/510497-history-civil-rights-and-the-

original-cancel-culture.

. Henry Olsen, McCarthyism Is Back. This Time, It’s Woke., WASH. POST: OP. (July 15, 2020, 6:15 PM),

https://www.washingtonpost.com/opinions/2020/07/15/mccarthyism-is-back-this-time-its-woke.

. Jordan Runtagh, When John Lennon’s ‘More Popular Than Jesus’ Controversy Turned Ugly, ROLLING

STONE (July 29, 2016, 1:03 PM), https://www.rollingstone.com/feature/when-john-lennons-more-popular-than-

jesus-controversy-turned-ugly-106430/; Carson Blackwelder, Dixie Chicks Talk Cancel Culture 17 Years After

Being Blacklisted, GOOD MORNING AM. (Mar. 16, 2020), https://www.goodmorningamerica.com/culture/story

/dixie-chicks-talk-cancel-culture-17-years-blacklisted-69617700.

. See generally Steven Arrigg Koh, From “Stigma” and “Coping” to Social Repositioning: A New

Perspective on HIV/AIDS, Identity, and Human Rights, in SYMBOLIC TRANSFORMATION: THE MIND IN

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88 HASTINGS LAW JOURNAL [Vol. 74:79

were uncoupled in 1905,

in modern society the nature of punishment has

transformed into something more subtle and pervasive.

In the United States

specifically, criminal punishment in the mass incarceration era has moved away

from normative goals, such as retribution and rehabilitation, and has instead

trended toward banishment, wherein the system has decided that the offender is

“other” and must be excluded.

Contemporary forms of U.S. criminal

banishment include life imprisonment without parole or equivalent sentences,

collateral consequences tantamount to civil death, and the death penalty, all of

which disproportionately affect marginalized communities.

Cancel culture channels this shaming through a new modality: social

media. Social media leads to acceleration, amplification, and democratization

of the social forces that normally lead to ostracization.

First, social media

accelerates public shaming through rapid dissemination of stories, such that in

a matter of hours any individual may be identified as having engaged in

perceived wrongdoing. Second and relatedly, this rapid identification is

amplified, in that it may proliferate to become known to millions of people

around the country and the world. Third and finally, social media democratizes

the power to shame, given that any individual with a social media account may

engage in canceling.

This definition clarifies popular debate over the nature of cancel culture. In

popular conception, one area of ambiguity is the target—some define cancel

culture as only targeting celebrities, whereas others describe cancel culture as

potentially sanctioning anyone. Another open question is the nature of the

sanction. Cancel culture can lead to online protest of the individual,

real-world

MOVEMENT THROUGH CULTURE AND SOCIETY 284 (2010); João Florêncio, AIDS: Homophobic and Moralistic

Images of 1980s Still Haunt Our View of HIV—That Must Change, THE CONVERSATION (Nov. 27, 2018, 9:30

AM), https://theconversation.com/aids-homophobic-and-moralistic-images-of-1980s-still-haunt-our-view-of-

hiv-that-must-change-106580; Victor Maldonado, Billy Porter Revealed Both That He’s HIV Positive and How

the Diagnosis Still Bears a Stigma, NBC NEWS: THINK (May 20, 2021, 12:52 PM), https://www.nbcnews.com

/think/opinion/billy-porter-revealed-both-he-s-hiv-positive-how-diagnosis-ncna1268045.

. Michael Ray, Pillory, ENCYC. BRIT. (June 18, 2021), https://www.britannica.com/topic/pillory-

penology; BRAITHWAITE, supra note 47, at 59.

. See generally MICHAEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (1975).

. Kleinfeld, supra note 29, at 949–50; see also Koh, supra note 32, at 171 (considering the role of the

“other” in U.S. transnational and international criminal law policy).

. Kleinfeld, supra note 29, at 949–74.

. Stephens, supra note 39 (arguing that cancel culture is similar to the political correctness movement of

thirty years ago).

. See MINOW, supra note 40, at 3–4 (noting that the majority of Americans now receive their news via

algorithms and on screens).

. See e.g., Molly Roberts, The Rise and Fall of Alison Roman, WASH. POST: OP. (May 13, 2020, 10:11

AM), https://www.washingtonpost.com/opinions/2020/05/13/rise-fall-alison-roman/ (detailing how the chef

Alison Roman’s critique of Chrissy Teigen and Marie Kondo, two women of color, started a conversation about

cultural appropriation in Roman’s recipes, which led to her permanent leave of absence from her New York

Times Cooking column).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 89

harassment,

loss of a job,

or even bodily harm or death.

An additional area

of ambiguity is the conduct that is subject to cancel culture. On one extreme are

criminal acts; at the other extreme is conduct that is not only legal but

innocuous.

Another recurring question is the role of social media. Social media

is often perceived as a critical first step to canceling;

however, individuals or

topics—such as Dr. Suess books—nowadays are sometimes perceived as being

“canceled” even without social media.

A final question is who decides the

sanction. Social media communities are both distinct and overlapping, like a

large tree with divergent branches connected to the same core trunk. In this

sense, certain sectors of social media communities may identify and isolate a

particular target for sanctioning (e.g., a tech individual fired for making a lewd

joke about the word “dongle” at a conference);

at other times, a broader swath

of the community may engage (e.g., the Cosby allegations).

Furthermore, while rightwing conservatives increasingly brandish cancel

culture as a liberal sanctioning device, canceling happens to individuals on both

sides of the political aisle. National Football League quarterback Colin

. See e.g., Taylor Mooney & Justin Sherman, How “Cancel Culture” Changed These Three Lives

Forever, CBS NEWS (Aug. 13, 2020, 6:51 AM), https://www.cbsnews.com/news/cancel-culture-changed-lives-

forever-cbsn-originals/ (detailing how CFO Adam Smith’s company received bomb and death threats after he

posted a video of himself protesting Chick-fil-A and telling an employee “I don’t know how you live with

yourself and work here”).

. See e.g., Cindy Boren, A Timeline of Colin Kaepernick’s Protests Against Police Brutality, Four Years

After They Began, WASH. POST (Aug. 26, 2020, 11:20 AM), https://www.washingtonpost.com/sports/2020/06

/01/colin-kaepernick-kneeling-history/; Jonah E. Bromwich, Amy Cooper, Who Falsely Accused Black Bird-

Watcher, Has Charge Dismissed, N.Y. TIMES (Feb. 16, 2021), https://www.nytimes.com/2021/02/16/nyregion

/amy-cooper-charges-dismissed.html; Petula Dvorak, Flipping Off President Trump Has Changed Juli

Briskman’s Life—and Exposed Our Divisions, WASH. POST (Nov. 14, 2017), https://www.washingtonpost.com

/local/flipping-off-president-trump-has-changed-juli-briskmans-life—and-exposed-our-divisions/2017/11/07/

19efab02-c3f6-11e7-afe9-4f60b5a6c4a0_story.html.

. See Derrick Bryson Taylor, Caroline Flack, Who Hosted ‘Love Island,’ Dies by Suicide at 40, N.Y.

TIMES (Feb. 15, 2020), https://www.nytimes.com/2020/02/15/arts/caroline-flack-dead.html (reporting the

suicide of Caroline Flack, former Love Island host and a fixture in British tabloids, following harsh media

coverage of assault allegations against her); see also Jess Campbell, Have We Taken Cancel Culture Too Far in

2020?, GQ (Jan. 15, 2020), https://www.gq.com.au/success/opinions/have-we-taken-cancel-culture-too-far-in-

2020/news-story/0f12503dbf60071a63d7ffd5e29bcce7 (describing the circumstances surrounding two suicides:

that of the man misidentified as the kitten torturer in a viral video and that of a young man who, after protesting

a children’s reading event hosted by a drag queen, received incessant online attacks). A video depicting the

torture and deaths of two kittens went viral, leading to an international search for the perpetrator. Campbell,

supra. One man was wrongfully accused of the crimes and, following weeks of internet harassment, took his

own life. Id. Another shocking suicide linked to cancel culture is that of twenty-one-year-old Wilson Gavin, who

protested a drag queen reading to children at an Australian library. Id. The video of the protest went viral and

online attacks ensued. Id. He eventually committed suicide. Id.

. The Cosby and Donohue cases mentioned in the Introduction are examples along this spectrum.

. See, e.g., supra notes 8–9 and surrounding text (describing the Cosby case).

. Tristin Hopper, Here Are the ‘Wrong’ Illustrations That Got Six Dr. Seuss Books Cancelled, NAT’L

POST (Mar. 3, 2021), https://nationalpost.com/entertainment/books/here-are-the-wrong-illustrations-that-got-six

-dr-seuss-books-cancelled.

. Jon Ronson, How One Stupid Tweet Blew Up Justine Sacco’s Life, N.Y. TIMES (Feb. 12, 2015), https://

www.nytimes.com/2015/02/15/magazine/how-one-stupid-tweet-ruined-justine-saccos-life.html.

. A separate issue, for further research, is the degree to which the national discourse on social media

excludes individuals who do not have access to social media.

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90 HASTINGS LAW JOURNAL [Vol. 74:79

Kaepernick’s NFL career effectively ended when a photo of him kneeling during

the national anthem went viral.

American writer Will Wilkinson triggered a

social media firestorm and then was fired from his job at Niskanen Center after

tweeting: “If Biden really wanted unity, he’d lynch Mike Pence.”

In 2017, a

photo went viral of Virginia resident and government contractor Juli Briskman

giving the middle finger to President Trump’s motorcade.

She was fired from

her job shortly thereafter.

And Kathy Griffin, comedian and actress, was fired

from her longtime position as cohost of CNN’s New Year’s Eve broadcast after

she posted an image holding a mask of a severed head that resembled that of

former President Donald Trump.

After President Biden’s inauguration, she

even tweeted, “SO AM I UNCANCELLED NOW?”

B. CANCEL CULTURE AS GAP FILLING

How does cancel culture relate to criminal justice? Cancel culture is gap

filling, often redressing issues of under- and over-enforcement in our criminal

justice system.

Our era of mass incarceration is rightly perceived as prosecuting too many

people, too often, for too much conduct.

It is also self-evidently true that our

criminal justice system does not prosecute all conduct that society considers

harmful or immoral. Thus, our criminal justice system exhibits structural

accountability gaps, opening the door for social media sanction. This concept is

analogous to what criminal legal scholars call “impunity gaps,” or cases of

. Boren, supra note 61.

. Robby Soave, Cancel Culture Comes for Will Wilkinson, REASON (Jan. 22, 2021, 12:13 PM), https://

reason.com/2021/01/22/niskanen-center-will-wilkinson-lynch-mike-pence-tweet-cancel-culture/.

. Dvorak, supra note 61.

. Michelle Singletary, She Posted a Photo of Herself Giving Trump the Finger. She Lost Her Job. Was

Her Firing Fair?, WASH. POST (Nov. 9, 2017, 7:18 AM), https://www.washingtonpost.com/news/get-there

/wp/2017/11/09/she-posted-a-photo-of-herself-giving-trump-the-finger-she-lost-her-job-was-her-firing-fair/.

Briskman noted that a male employee was not fired after posting lewd comments on his Facebook page. Id. The

incident prompted national debate about the fairness of her firing, including public commentary from Harvard

Law School professor Benjamin Sachs, who argued in a Washington Post op-ed that her firing should have been

illegal. Benjamin Sachs, It Should Be Illegal To Fire the Cyclist Who Gave Trump the Finger, WASH. POST

(Nov. 8, 2017, 11:20 AM), https://www.washingtonpost.com/news/posteverything/wp/2017/11/08/the-cyclist-

who-flipped-trump-off-got-fired-that-should-be-illegal/ (“Given Trump’s repeated decision to insert politics

into private-sector workplace disputes, it’s time for courts to offer heightened protection for private-sector

employees’ political activities. If the president can tweet about workers, then workers must be able to tweet

about, remark on and—yes—flip off the president. And protecting these rights means that employers must not

be able to fire workers who engage in these political acts.”).

. Herman Wong, CNN Cuts Ties with Kathy Griffin Amid Controversy over Comedian’s Gruesome Anti-

Trump Photo, WASH. POST (May 31, 2017, 1:49 PM), https://www.washingtonpost.com/news/arts-and-

entertainment/wp/2017/05/30/kathy-griffin-apologizes-for-severed-donald-trump-head-photo-after-backlash.

. Kathy Griffin (@KathyGriffin), TWITTER (Jan. 20, 2021, 12:09 PM), https://twitter.com/kathygriffin

/status/1351939816884035585.

. See generally Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers,

128 HARV. L. REV. 253 (2015).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 91

individuals who have engaged in serious transnational or international criminal

wrongdoings but are never held accountable for such crimes.

These gaps take two forms: one of criminalization of substantive conduct

and the other of enforcement disparities. Regarding the former, consider a

hypothetical: if our criminal justice system were somehow perfectly aligned

with our cultural norms concerning the definition and enforcement of all

wrongful conduct, our society’s collective sensibility would likely be one of “let

the criminal justice system handle it.” But of course, such a perception is not the

case in contemporary America and is beyond achievability given the diversity

and evolution of cultural norms in our large, pluralist democracy. For starters,

our system criminalizes a small percentage of conduct that is harmful or

immoral: as every first-year law student learns, for example, the vast majority

of omissions fail to meet the actus reus requirement, despite the fact that a failure

to act may cause or perpetuate certain harms.

And the American criminal

justice system criminalizes conduct that is likely neither harmful

nor immoral, such as marijuana possession.

Furthermore, as a formal matter,

criminal justice inevitably fails to achieve the “correct” result in many cases.

In the United States, hate speech is a major category of non-criminalized

conduct. As is well known, U.S. judicial interpretation of the First Amendment

is broader and more protective than similar protections in European countries,

for example.

This includes, in particular, hate speech protections.

While the

history and rationales for such protections are the site of rich scholarly

discourse,

one consequence of such jurisprudence is a gap between the

freedom to express and the harm or offense that results from such expression.

Just as, formally speaking, omissions generally do not give rise to criminal

sanction, neither do many forms of harmful speech.

Moving from formalism to realism, the contemporary pattern of criminal

law enforcement reveals even deeper disparities between criminal justice and

our lay norms. In practice, disproportionate impact on certain communities—

especially communities of color—persistently calls into question the

. Koh, supra note 32, at 352 (discussing impunity gaps in international and transnational criminal law);

see also generally David Scheffer, Closing the Impunity Gap in U.S. Law, 8 NW. U. J. INT’L HUM. RTS. 30 (2009)

(discussing the impunity gap in the United States).

. JENS DAVID OHLIN, CRIMINAL LAW: DOCTRINE. APPLICATION, AND PRACTICE 119–40 (2d ed. 2018)

(defining the act requirement in criminal law). For example, a witness who fails to intervene during the

perpetration of a robbery cannot be prosecuted merely for such omission. Id. at 119.

. A review of such criminalization debates is beyond the scope of this Article. See, e.g., Lauren-Brooke

Eisen & Inimai Chettair, 39% of Prisoners Should Not Be in Prison, TIME (Dec. 9, 2016, 5:01 AM), https://time

.com/4596081/incarceration-report/ (arguing that people convicted of low-level drug offenses should not be

incarcerated).

. See generally Daniel Epps, The Consequences of Error in Criminal Justice, 128 HARV. L. REV. 1065

(2015) (examining the principle that it is “better that ten guilty persons escape, than that one innocent suffer.”).

. See Harold Hongju Koh, On American Exceptionalism, 55. STAN. L. REV. 1479, 1483 (2003).

. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).

. See generally, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First

Amendment, 118 COLUM. L. REV. 1953 (2018).

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92 HASTINGS LAW JOURNAL [Vol. 74:79

effectiveness of this system. As is well documented, people of color—especially

black and brown Americans—are disproportionately harassed by the

police,

arrested,

prosecuted,

sentenced at higher incarceration rates,

and

more likely to receive the death penalty.

At the same time, a related critique is

one of under-enforcement: individuals who are white, wealthy, or otherwise

powerful are less likely to be held accountable for their crimes.

Civil legal enforcement mechanisms may also fail to close these

accountability gaps. Prospective civil plaintiffs may face insurmountable

barriers to bringing successful claims for harms suffered; often, they are beset

by substantive and procedural barriers, qualified immunity protections, or other

access-to-justice issues.

Frequently, these challenges are interconnected. For

example, Joanna Schwartz has recently described civil rights “ecosystems,”

wherein the frequency and success of claims against the government are

determined by an interconnected and interactive set of actors (e.g., plaintiffs’

attorneys, judges, juries, and defense counsel), legal rules and remedies

(e.g., § 1983 doctrine and defenses), and informal practices (e.g.,

litigation, settlement, and indemnification decisions).

And other enforcement

mechanisms, such as Title IX mechanisms on campuses, are beset with

interrelated questions of under-enforcement and procedure.

Into this gap steps social media and cancel culture as a complementary

system of collective condemnation.

Whereas our criminal justice and other

. See generally BUTLER, supra note 12; Carbado, supra note 13 (discussing the use of Fourth

Amendment jurisprudence to empower police to take violent actions against the Black community); Alice

Ristroph, The Constitution of Police Violence, 64 UCLA L. REV. 1182 (2017) (reviewing the use of current

Supreme Court seizure doctrine as justification for police violence).

. See generally BUTLER, supra note 12.

. See, e.g., Elizabeth Hinton, LeShae Henderson & Cindy Reed, An Unjust Burden: The Disparate

Treatment of Black Americans in the Criminal Justice System, VERA INST. JUST. (May 2018), https://www.vera

.org/downloads/publications/for-the-record-unjust-burden-racial-disparities.pdf.

. See generally, e.g., BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA (2006).

. See, e.g., Race and the Death Penalty, ACLU (Feb. 26, 2021), https://www.aclu.org/other/race-and-

death-penalty.

. See, e.g., Henry F. Fradella & Ryan G. Fischer, Factors Impacting Sentence Severity of Intimate

Partner Violence Offenders and Justification for the Types of Sentences Imposed by Mock Judges, 34 LAW &

PSYCH. REV. 25, 31 (2010); see also generally Alexandra Natapoff, Underenforcement, 75 FORDHAM L.

REV. 1715 (2006).

. See Joanna C. Schwartz, After Qualified Immunity, 120 COLUM. L. REV. 309, 318 (2020); see also

generally Deborah L. Rhode, Access to Justice, 69 FORDHAM L. REV. 1785 (2001).

. Joanna C. Schwartz, Civil Rights Ecosystems, 118 MICH. L. REV. 1539, 1598 (2020). (“My point is not

that courts should stop interpreting the law, legislators should stop making law, or scholars should stop imagining

how the law could be improved. But each should recognize their decisions and proposals will not operate in a

vacuum and should be skeptical of their ability to craft generally applicable rules that achieve particular policy

ends.”).

. See, e.g., Katharine Silbaugh, Reactive to Proactive: Title IX’s Unrealized Capacity to Prevent Campus

Sexual Assault, 95 B.U. L. REV. 1049, 1050 (2015).

. Of course, myriad other forms of legal enforcement and non-legal condemnation constrain behavior.

A person engaging in offensive speech, for example, may be civilly sued for defamation in limited

circumstances. See generally Jeremy Waldron, Dignity and Defamation: The Visibility of Hate, 123 HARV. L.

REV. 1596 (2010). Changes to internal policies within a police department may ameliorate certain incentives in

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 93

systems are slow,

cancel culture may immediately fill the void to sanction

offensive and even criminal conduct. Within days, hours, or even minutes, an

online community of millions may make a collective determination as to an

individual’s guilt for engaging in perceived offensive behavior.

Cancel culture fills accountability gaps in two regards. First, it refers

individual cases of wrongdoing to the criminal justice system, constituting a new

mode of democratic participation in the administration of criminal justice in the

face of prosecutorial control. Second, it independently shames individuals who

are beyond the criminal justice system’s reach.

1. The Referral Function

In 2014, comedian Hannibal Burress in a stand-up routine identified Bill

Cosby as a rapist.

In his act, Burress lamented Cosby’s commentary about

black men, their dress, and the way they should act, and suggested that since

Cosby had long been accused of rape, he was not poised to criticize.

Burress

encouraged the audience to Google search “Cosby” and “rape” to see for

themselves.

This reignited the discussion around the rape allegations against

Cosby, leading to victims coming forward, criminal investigation, and,

eventually, Cosby’s conviction.

The Cosby case highlights cancel culture’s referral function. While

cancel culture is typically depicted as a stand-alone system of public censure,

it interrelates with our existing criminal justice system by publicly illuminating

conduct warranting criminal investigation or prosecution. In this way, it fills the

aforementioned accountability gap in enforcement by engaging the criminal

justice system, which may or may not then respond effectively.

What about the cases of over-enforcement? As noted above, our mass

incarceration era is characterized by its disproportionate impact on communities

of color. Often, this may elude the structure of cancel-culture referral: social

media more easily highlights and refers perceived individual, wrongful human

conduct than it does structural over-enforcement in the carceral system. But

cancel culture may be effective in referring the legal actors responsible for over-

law enforcement. See generally Shaun Ossei-Owusu, Police Quotas, 96 N.Y.U L. REV. 529, 541 (2021). And

interpersonal relations may curb certain action—for example, changing social norms will constrain behavior.

See Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 VA. L. REV. 1603, 1604

(2000). The broader universe of such interaction is beyond the scope of this Article, which focuses specifically

on how cancel culture relates to or resembles criminal justice.

. Posner, supra note 19 (“Our plodding legal system often fails to do justice because of high standards

of proof, the expense of lawyers, and the weakness of the laws . . . . [S]haming allows us to avoid the messy

business of legislation in the first place; moral norms are enforced directly, so one doesn’t need to wait for the

political system to lurch into motion.”).

. Anna Silman, Hannibal Buress Called Bill Cosby a Rapist, VULTURE (Oct. 20, 2014), https://www

.vulture.com/2014/10/hannibal-buress-called-bill-cosby-a-rapist.html.

. Id.

. See Lewis, supra note 35 (describing being canceled as an economic, rather than a criminal, sanction).

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94 HASTINGS LAW JOURNAL [Vol. 74:79

enforcement—overwhelmingly police officers—who violate certain criminal

prohibitions, particularly in cases concerning victims of color. For example,

without the existence of smart phones and social media, it is less likely that

anyone outside of Minneapolis would have heard about the killing of George

Floyd. Instead, the detailed, viral footage fostered widespread public demand

that officer Derek Chauvin be tried and convicted of George Floyd’s murder.

The same may be said of vigilantism; consider the Ahmaud Arbery case. On

February 23, 2020,

Ahmaud Arbery was shot and killed by two white men while

on a short jog in his neighborhood in Glynn County, Georgia.

Arbery was

killed months before George Floyd’s death on May 25, 2020, but his case only

garnered national attention and closure after Floyd’s murder sparked nationwide

protests.

100

It was only later that year that an anonymous leak on his case, which

had been inactive, went viral, eventually leading to the arrest

and prosecution of the perpetrators.

101

These individuals were also subject to

immediate public scrutiny: there was widespread outrage on social media,

including criticism from both President Trump, who labeled the footage very

disturbing, and then-presidential candidate Joe Biden, who likened the shooting

to a lynching.

102

While cancel culture may refer such cases to the criminal justice system,

the system itself may not redress the actual wrongs. Bill Cosby’s conviction was

ultimately vacated on due process grounds, to the outrage of #MeToo advocates

and the general public.

103

Many fear that the development in Cosby’s case may

have a chilling effect on victims of sexual assault coming forward.

104

Or take for

example the case of Tamir Rice, a twelve-year-old black American boy killed

by a police officer within seconds of police arriving at a park where Rice was

holding an airsoft gun.

105

A grand jury in Cleveland did not bring charges against

. Nicholas Bogel-Burroughs & Tim Arango, What To Know About the Trial of Derek Chauvin, N.Y.

TIMES (Mar. 8, 2021), https://www.nytimes.com/live/2021/derek-chauvin-trial-explained#derek-chauvin-

jurors-dismissed.

. Richard Fausset, Before Breonna Taylor and George Floyd, There Was Ahmaud Arbery, N.Y. TIMES

(Feb. 28, 2021), https://www.nytimes.com/2021/02/28/us/ahmaud-arbery-anniversary.html.

100

. See Richard Fausset, What We Know About the Shooting Death of Ahmaud Arbery, N.Y. TIMES (Feb.

28, 2021), https://www.nytimes.com/article/ahmaud-arbery-shooting-georgia.html; Evan Hill, Ainara

Tienfenthäler, Christiaan Triebert, Drew Jordan, Haley Willis & Robin Stein, How George Floyd Was Killed in

Police Custody, N.Y. TIMES, https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html (Jan. 24,

2022).

101

. Fausset, supra note 100; Sarah Mervosh, Ahmaud Arbery Video Was Leaked by a Lawyer Who

Consulted with Suspects, N.Y. TIMES (May 8, 2020), https://www.nytimes.com/2020/05/08/us/ahmaud-arbery-

video-lawyer.html.

102

. Mervosh, supra note 101.

103

. Maryclaire Dale, Bill Cosby Freed from Prison, His Sex Conviction Overturned, AP NEWS (June 30,

2021), https://apnews.com/article/bill-cosby-conviction-overturned-5c073fb64bc5df4d7b99ee7fadddbe5a.

104

. Elizabeth Blair, Bill Cosby’s Release Could Have a Silencing Effect on Victims, Advocates Say, NPR

(June 30, 2021, 7:00 PM), https://www.npr.org/2021/06/30/1011859393/bill-cosbys-release-could-have-a-

silencing-effect-on-victims-advocates-say.

105

. Ashley Fantz, Steve Almasy & Catherine E. Shoichet, Tamir Rice Shooting: No Charges for Officers,

CNN (Dec. 28, 2015, 7:22 PM), https://www.cnn.com/2015/12/28/us/tamir-rice-shooting/index.html.

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 95

the two officers even though public outcry and a report from a judge argued that

probable cause existed for multiple charges ranging from murder to dereliction

of duty.

106

Cancel culture’s referral function thus constitutes a new mode of

democratic participation in the administration of criminal justice in the face of

prosecutorial control. This phenomenon intervenes in ongoing scholarly debate

regarding the prosecutor’s role vis-à-vis the polity, particularly in a time when

plea bargains have replaced criminal jury trials, thereby reducing lay, public

participation in the criminal process.

107

One thread of existing scholarship favors

stronger connections between prosecutorial mechanisms and the community, in

response to what some view as a democratic deficit in prosecutorial decision-

making.

108

Others have argued against such democratic proposals.

109

While such

scholarship has not yet considered the role that social media may play in

influencing the administration of criminal justice, social media’s visibility and

immediacy may push prosecutorial actors toward charging in cases when they

otherwise might not.

110

The advent of accelerated, amplified, and democratized

social media may influence the administration of criminal justice through online

referral.

2. The Shaming Function

On July 4, 2020, an Asian American family at a restaurant in Carmel

Valley, California, was celebrating an aunt’s birthday when Michael

Lofthouse, the CEO of Bay Area tech company Solid8, started yelling

anti-Asian insults at them.

111

Part of the incident was captured on cellphone

video, including Lofthouse giving the family the middle finger, then yelling

obscenities that included “Fuck you Asians,” “You fucking Asian piece of shit,”

106

. Id.

107

. See generally Jeffrey Bellin, Plea Bargaining’s Uncertainty Problem, 101 TEX. L. REV. (forthcoming

2023); Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 COLUM. L. REV. 249 (2019).

108

. See, e.g., Joshua Kleinfeld, Three Principles of Democratic Criminal Justice, 111 NW. L. REV. 1455,

1456–57 (2017) (laying out a framework for conceiving democratic criminal justice); Russell M. Gold,

Promoting Democracy in Prosecution, 86 WASH. L. REV. 69, 71 (2011) (arguing that prosecution has become

divorced from the community and focused particularly on creating community awareness of how the

community’s resources are spent).

109

. See, e.g., Brenner M. Fissell, Local Offenses, 89 FORDHAM L. REV. 837, 843–45 (2020) (discussing

legislative drafting of criminal codes at a local level and discussing the drawbacks of communal participation as

a response to democratizing criminal justice efforts); John Rappaport, Some Doubts About Democratizing

Criminal Justice, 87 U. CHI. L. REV. 711, 717 (2020) (providing a general critique of the democratic approach

to criminal justice).

110

. See Gold, supra note 108 (discussing required cost disclosures); Kevin Washburn, Restoring the Grand

Jury, 76 FORDHAM L. REV. 2333, 2339 (2008) (discussing restructuring the grand jury); Rappaport, supra note

109, at 718 (summarizing democratizers’ policy proposals as either substantive law reforms, structural incentives

for procedural justice, citizen advisory and oversight committees, and jury reform, and discussing what he views

as the flawed theoretical premise these proposals rest upon).

111

. David K. Li & Rima Abdelkader, Video Shows Man Thrown Out of California Restaurant for Racist

Tirade Against Family, NBC NEWS (July 8, 2020, 12:10 PM), https://www.nbcnews.com/news/asian-america

/video-shows-man-thrown-out-california-restaurant-racist-tirade-against-n1233117.

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96 HASTINGS LAW JOURNAL [Vol. 74:79

and “Trump’s gonna fuck you.”

112

Once the footage went viral, Lofthouse

announced he was stepping down as CEO of Solid8.

113

This incident of anti-Asian racism illustrates cancel culture’s shaming

function, wherein social media communities fill accountability gaps by

identifying and stigmatizing individuals who have engaged in perceived

offensive conduct—often when such cases are outside of the reach of the

criminal justice system.

Legal scholarship in the mid-2010s addressed incidents of online shaming

when they were more isolated.

114

Since that time, online shaming has ripened

into cancel culture, a more ubiquitous, developed, and persistent system of

sanction. Most often, cancel culture shames because the perceived offensive

conduct falls beyond the reach of the criminal justice system. In such cases,

enforcement may be foreclosed by a statute of limitations, lack of evidence, or

lack of any statutory basis for indictment. Criminal justice and other legal

regimes are “culture-bearing,” a site of cultural negotiation of the concepts of

“wrongdoing and community, social order and violence, identity, the power of

the state, and the terms of collective ethical life.”

115

When such systems cannot

(and likely will not) function, social media shames the offenders as a means of

norm enforcement.

As noted above, such shaming may respond to hate speech, or harmful

speech. Consider cancel culture’s origins, which began in public collective

memory in 2013.

116

The early example from that year involved Justine Sacco, a

white woman, tweeting from the airport before leaving for South Africa: “Going

to Africa. Hope I don’t get AIDS. Just Kidding. I’m white!”

117

At the time,

coverage of this incident observed it as a quirk of social media: the New York

Times, for example, ran an article in 2015 titled How One Stupid Tweet Blew Up

Justine Sacco’s Life.

118

Since that time, cancel culture has developed into a

system where some are shamed for engaging in legally protected speech; the

responsive online speech that “cancels” is also legally protected.

Often, cancel culture may play both a shaming and referral function. For

example, in May 2020, New Yorker Amy Cooper made a 911 call in which she

112

. Id.

113

. Togoh, supra note 7.

114

. See, e.g., Klonick, supra note 31, at 1046–50 (reviewing cases of online shaming in depth).

115

. Kleinfeld, supra note 29, at 940.

116

. Arguably, forms of online-driven cancel culture can be traced earlier. See, e.g., Suzanne Goldenberg,

Fake Reporter Unmasked at White House, GUARDIAN (Feb. 10, 2005, 7:04 PM), https://www.theguardian

.com/world/2005/feb/11/usa.suzannegoldenberg (noting that a fake White House correspondent quit his job at a

rightwing news site after liberal bloggers discovered he worked under a pseudonym and that his real name was

linked to gay pornographic web domains).

117

. Ronson, supra note 66. By the time she arrived in Cape Town eleven hours later, she was the top

trending Twitter topic, had already been fired from her job, received direct messages of condolence from friends,

and had her arrival recorded by a Twitter user who had physically gone to the Cape Town Airport for that

purpose. Id.

118

. Id. In its article, the Times reviewed the details of the case and observed that it was one of a rising trend

of isolated incidents wherein individuals are shamed or fired as a result of social media. Id.

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 97

claimed that a black man, Christian Cooper, was threatening her life when he

asked her to put her dog on a leash in Central Park.

119

Amy Cooper then lost her

job, her home, and, according to her lawyer, her public life.

120

The animal rescue

group where she had adopted the dog two years earlier temporarily

took it back.

121

She ultimately was charged with filing a false police report in

connection with her phone call, and the video capturing it all resulted in her

being canceled online.

122

In both its referral and shaming functions, cancel culture may serve

normatively beneficial ends. In particular, it may elevate the causes and concerns

of marginalized groups who have called for accountability but often confront

barriers to enforcement.

123

Thus, cancel culture may play a role in shaping our

culture due to its identification and sanction of harmful or immoral conduct long

overlooked.

II. CANCEL CULTURE’S PROBLEMATIC PROCESS

While cancel culture may beneficially fill accountability gaps, missing is

any framework by which to assess its drawbacks. Thus, this Part offers a

criminal law and procedure framework focusing on the problematic aspects of

cancel culture’s sanctioning function: inadequate notice, imprecise factfinding,

disproportionate punishment, neglect of rehabilitation, and fostering cultural

anxiety over human conduct. This Part will also briefly engage in a comparative

cultural analysis to underscore the deeper, worrying American punitive impulse

that characterizes our era of mass incarceration.

A. THE STRUCTURE OF CONTEMPORARY CONDEMNATION

1. Notice

Which human conduct warrants cancelation? An initial problem is that

canceled individuals are sometimes unaware that their action will trigger such

sanction. For example, through social media, American dentist Walter Palmer

was identified as the hunter who in 2015 killed Cecil the Lion, and yet the

conduct for which he was publicly shamed was not illegal.

124

In Palmer’s case,

the evidence existed in the form of pictures and travel documents confirming

119

. Id.

120

. Jan Ransom, Amy Cooper Faces Charges After Calling Police on Black Bird-Watcher, N.Y. TIMES

(Oct. 14, 2020), https://www.nytimes.com/2020/07/06/nyregion/amy-cooper-false-report-charge.html.

121

. Id.

122

. Id.

123

. Cancel culture may also benefit various other fronts unrelated to social and identity issues. For

example, it has proven effective in rebuking establishment media and corporate power. RONSON, supra note 43,

at 9–10 (reviewing early cases of social media effectively sanctioning the Daily Mail newspaper and LA Fitness).

124

. How the Internet Descended on the Man Who Killed Cecil the Lion, BBC: NEWS (July 29, 2015),

https://www.bbc.com/news/blogs-trending-33694075.

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98 HASTINGS LAW JOURNAL [Vol. 74:79

that Palmer killed the lion and traveled for the purposes of a trophy hunt.

125

Social media communities quickly called for Palmer to be prosecuted and

extradited to Zimbabwe;

126

however, prosecutors in both the United States and

Zimbabwe could not find crimes warranting either,

127

because Palmer had a

legal hunting permit and killed Cecil on unprotected land.

128

Therefore, the

charges brought against Palmer’s hunting guide and the man who occupied the

land on which Cecil was killed

129

were also dismissed.

130

Criminal law helps us understand this as a question of notice. Inherent in

the principle of legality is the notion of fair notice, such that individuals may be

apprised that what they are doing is wrong and conform their conduct

accordingly.

131

But criminal law scholarship has also demonstrated how notice

has gone awry in our modern criminal justice system. For example, as Bill Stuntz

has persuasively argued, a central dynamic in contemporary criminal justice is

broadly defined criminal statutes and prosecutors with tremendous power to

bring cases within that framework.

132

As a result, individual legal enforcement

actors—specifically, prosecutors—have tremendous discretion in interpreting

and enforcing such violations.

Something analogous occurs with cancel culture’s notice. Let us consider

potential examples of anti-Asian bias. A Dallas company headed by three white

women faced backlash for its culturally appropriative, revamped Mahjong set

that removed Chinese characters from the game.

133

Chef Alison Roman was

criticized for culturally appropriating recipes and lost her New York Times

125

. Jani Hall, Cecil the Lion Died amid Controversy—Here’s What’s Happened Since, NAT’L GEOGRAPHIC

(Oct. 15, 2018), https://www.nationalgeographic.com/animals/article/cecil-african-lion-anniversary-death-

trophy-hunting-zimbabwe.

126

. Matthew Weaver & Mahita Gajanan, Cecil the Lion Hunter Walter Palmer Faces Calls for

Prosecution, GUARDIAN (July 29, 2015, 14:59 EDT), https://www.theguardian.com/world/2015/jul/29/cecil

-the-lion-calls-for-prosecution-us-dentist-walter-palmer.

127

. Michael E. Miller, Zimbabwe Charges Farmer over Killing of Cecil the Lion, but Not American

Dentist, WASH. POST (Aug. 19, 2015, 2:28 AM), https://www.washingtonpost.com/news/morning-mix/wp

/2015/08/19/zimbabwe-charges-farmer-over-killing-of-cecil-the-lion-but-not-american-dentist/.

128

. Id.

129

. Id.

130

. Nomsa Maseko, Cecil’s The Lion’s Killer To Escape Prosecution, BBC NEWS (Oct. 12, 2015),

https://www.bbc.com/news/av/world-africa-34510256; see also RONSON, supra note 43, at 132–33 (describing

a journalist’s triggering Twitter critique of a Vanity Fair columnist who had shot a baboon on safari in Tanzania).

131

. See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (“A fundamental principle in our

legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or

required.”); Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (“[A] statute which either forbids or requires

the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and

differ as to its application violates the first essential of due process of law.”); Theodore J. Boutros, Jr. & Blaine

H. Evanson, The Enduring and Universal Principle of “Fair Notice”, 86 S. CALIF. L. REV. 193, 195 (2013).

132

. See generally William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505

(2001).

133

. Jessie Yeung, Mahjong Design ‘Refresh’ Reignites Debate over Cultural Appropriation, CNN (Jan.

12, 2021), https://www.cnn.com/style/article/mahjong-tiles-cultural-appropriation-intl-hnk-scli-dst/index.html.

The company claimed that its variant was an evolution of American mahjong, which morphed to have rules

distinct from the Chinese version and became important to different cultures. Id.

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 99

Cooking column after calling Chrissy Teigen and Marie Kondo, two

women of color, sellouts.

134

And U.S. soccer star Megan Rapinoe was criticized

for tweeting ten years ago that a teammate looked Asian with closed eyes.

135

Arguably, all three examples violate the broad norm of “do not engage in racist

behavior toward the Asian American and Pacific Islander community.” But

whether any individual conduct in fact triggers such violation is left in the hands

of social media communities, who may have varying interpretations of whether

a violation of this norm occurred.

136

2. Evidence and Procedural Fairness

How do we know an individual has in fact engaged in conduct warranting

cancelation? Another downside of cancel culture is its imprecise factfinding.

The accumulation of social media posts, photos, or video clips may produce an

inaccurate record of events. Specifically, cancel culture presents the problem of

misidentification and the problem of mischaracterization.

First, take the problem of misidentification. Social media users who engage

in canceling quickly make collective judgments, and may identify the wrong

person as having engaged in the offending conduct. For example, in the wake of

revelations from Mary Trump, niece of former President Donald Trump,

that a man named Joe Shapiro took Trump’s SAT for him, social

media quickly identified a man by that name as the responsible individual.

137

The media bombarded his widow with accusations and requests for comment,

and she had to quickly rectify that her husband was not the same Joe Shapiro

who had taken Trump’s SAT.

138

Sometimes this misidentification can even be

deliberate. For example, Shaun King, well-known civil rights and Black Lives

Matter activist, stated in the wake of Jacob Blake’s death that if the Kenosha

Police Department did not publicly identify the names of the officers responsible

for Blake’s shooting, he would start listing the names of every police officer in

the department to trigger backlash against each one.

139

The problem of mischaracterization is equally perilous. Photos of

individuals supposedly disobeying 2020 COVID-19 social distancing rules, for

134

. See, e.g., Roberts, supra note 59.

135

. Molly Sprayregen, Activists Are Trying To Cancel Megan Rapinoe over a Tweet She Sent 10 Years

Ago, LGBTQ NATION (June 24, 2021), https://www.lgbtqnation.com/2021/06/activists-trying-cancel-megan-

rapinoe-tweet-sent-10-years-ago/.

136

. See Klonick, supra note 31, at 1054 (discussing online shaming and social norms).

137

. John Santucci, Widow of Trump’s Friend Pushes Back Against Mary Trump SAT Allegation, Calls It

False, ABC NEWS (July 9, 2020, 2:10 AM), https://abcnews.go.com/Politics/widow-trumps-friend-pushes-back

-mary-trump-sat/story?id=71678433.

138

. Id. Mary Trump confirmed that the media had identified the wrong Joe Shapiro and expressed remorse

that his widow was thrust into the spotlight to defend him. Mica Soellner, Mary Trump: There Is Another Joe

Shapiro Who Took the President’s SAT Exam, WASH. EXAM’R (July 15, 2020, 9:03 AM), https://www

.washingtonexaminer.com/news/mary-trump-there-is-another-joe-shapiro-who-took-the-presidents-sat-exam.

139

. Ewan Palmer, Shaun King Says He May Name Innocent Kenosha Police Officers Until Jacob Blake

Shooter Identified, NEWSWEEK (Aug. 26, 2020, 11:16 AM), https://www.newsweek.com/shaun-king-kenosha-

police-jacob-blake-twitter-1527779.

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100 HASTINGS LAW JOURNAL [Vol. 74:79

example, were demonstrated to be deceptive regarding depth of field.

140

And

sometimes, the rush to judgment precedes video and other evidence. For

example, after being arrested during a traffic stop, driver Sherita Dixon-Cole

told the jail guard that she had been sexually assaulted by the arresting officer,

Daniel Hubbard.

141

After she made this accusation and the story went viral, the

Texas Department of Public Safety reviewed Hubbard’s body camera footage,

which revealed no wrongdoing.

142

The case led Texas to amend its false report

statute to expand criminal liability to making a false report to a detention officer

or jailer.

143

And as noted above, many mistakenly believed Jeopardy! contestant

Kelly Donohue made a hand gesture symbolizing white supremacy when, in

fact, he was merely celebrating his third win on the show.

144

The New York

Times described the case thus:

So the [question] is how the beating heart of nerdy, liberal fact-mastery can

pump blood into wild social media conspiracy, and send all these smart people

down the sort of rabbit hole that leads other groups of Americans to believe

that children are being transported inside refrigerators[,] [a]nd . . . how they

could remain committed to that point of view in the absence of any solid

evidence.

145

These are indeed evidentiary questions. In the courtroom, strict rules

govern the presentation of evidence because lay jurors may be incapable of

engaging in their factfinding role absent a prior narrowing of what they may

consider. Specifically, we fear that the jury, inexperienced in examining

evidence, may base its verdict on pure emotion or another improper rationale.

146

Therefore, judges have broad discretion to exclude relevant yet inflammatory or

confusing evidence to prevent jurors from being misled.

147

These concerns are

heightened in criminal cases, wherein juries’ factfinding results in

incarceration or even execution.

148

Cancel culture concretely exemplifies these

140

. Hess, supra note 41 (“Defenders of the crowds have quickly evolved into photographic forensic

analysts, scouring metadata, analyzing shadows and becoming conversant in the effects of telephoto lenses.”).

141

. Matthew Ablon, Woman Who Accused Texas Trooper of Sexual Assault Won’t Be Charged, KWTX

(May 20, 2018, 9:24 PM), https://www.kwtx.com/content/news/Texas-DPS-responds-to-accusations-against-

trooper-in-DWI-stop-483176441.html.

142

. Id.

143

. Patrick Clarke, Bipartisan Texas Bill Closes Loophole in False Report Statute After Woman Gets Away

with Debunked Rape Claim Against Trooper, THE WAXAHACHIE DAILY LIGHT (Oct. 15, 2019, 4:27 PM),

https://www.waxahachietx.com/news/20191015/bipartisan-texas-bill-closes-loophole-in-false-report-statute-

after-woman-gets-away-with-debunked-rape-claim-against-trooper [https://web.archive.org/web/20201223041

807/https://www.waxahachietx.com/news/20191015/bipartisan-texas-bill-closes-loophole-in-false-report-

statute-after-woman-gets-away-with-debunked-rape-claim-against-trooper].

144

. Smith, supra note 10.

145

. Id.

146

. Act of Jan. 2, 1975, Pub. L. 93–595, § 1, 88 Stat. 1926, 1932 (Notes of Advisory Committee on

Proposed Rules for Rule 403); LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE TWENTIETH CENTURY 267

(2004).

147

. See FED. R. EVID. 403.

148

. The deeper point here is not to say federal criminal evidentiary rules are always good or always bad,

nor to categorically laud or critique social media factfinding. The point is to be thoughtful about how evidentiary

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 101

abstract evidentiary rationales: we may observe in real time the effects of lay

factfinding in online communities.

149

Furthermore, cancel culture lacks other formal doctrines of procedural

fairness. Take age- and time-related considerations, for example. Various U.S.

criminal jurisdictions have developed juvenile justice systems that, relatively

speaking, favor rehabilitation over imprisonment because youth differ

developmentally from adults.

150

And criminal statutes of limitations imposing

time limits on prosecution advance a variety of purposes, including promoting

repose, placing defendants on an equal footing, and encouraging

prompt enforcement of the law.

151

By contrast, no time limit cabins online

accountability due to the permanence of online records. As a result, individuals

may be held to account based on conduct that occurred when they were

teenagers.

152

3. Proportionality

Which consequences of cancel culture should an offender suffer? And for

what conduct? Another concern with cancel culture is the severity of its sanction,

which may include death threats, public shame, or the prospect of never being

employed again.

rules function. The benefit of strict evidentiary rules is that they ensure some procedural fairness and obviate

some of the irrationalities of the human factfinder. But the downside of such rules is that relevant and material

evidence may be excluded on policy grounds that would otherwise lead to better results. Inversely, more lax

evidentiary rules may paint a more inclusive picture of events and yet also give rise to imprecision and

indiscriminate judgment.

149

. Furthermore, the intersection of strict evidentiary rules and lax social media rules intermix in complex

ways. In the case of cancel culture’s referral function, the lax social media rules of evidence will intersect with

formal evidentiary rules in the subsequent prosecution. In the case of shaming, lax rules govern the entirety of

the factfinding, leading to sanction. Indeed, as Eric Posner and Martha Nussbaum have noted, a problem with

shaming penalties is that they may be unreliable, targeting the wrong people given, in part, the absence of due

process. NUSSBAUM, supra note 43; Posner, supra note 19 (“[P]eople can easily be shamed even though they

did nothing wrong or not be shamed even though they did do something wrong.”). In so doing, they deter not

bad behavior but instead unpopular behavior. NUSSBAUM, supra, at 234.

150

. See Christopher Slobogin & Mark R. Fondacaro, Juvenile Justice: The Fourth Option, 95 IOWA L.

REV. 1, 20 (2009) (identifying various paths of rehabilitation and retribution that currently animate the juvenile

justice system, and suggesting an “individual prevention” model); see also generally Esther Hong, The Other

Federal Prosecutors (unpublished manuscript) (on file with author) (describing the function of the federal

juvenile justice system). In practice, of course, the juvenile justice system is much more problematic. See

Slobogin & Fondacaro, supra, at 4–8 (identifying the problematic misalignment between research on the causes

of juvenile crime and the dominant punitive approach to juvenile justice).

151

. See Koh, supra note 32, at 364; Tyler T. Ochoa & Andrew J. Wistrich, The Puzzling Purposes of

Statutes of Limitation, 28 PAC. L.J. 453, 460, 471, 483, 492 (1997).

152

. For example, journalist Alexi McCammond, poised to start her position as editor-in-chief of Teen

Vogue, recently resigned after company controversy over anti-Asian tweets she made as a teenager. Katie

Robertson, Teen Vogue Editor Resigns After Fury over Racist Tweets, N.Y. TIMES (Mar. 18, 2021), https://www

.nytimes.com/2021/03/18/business/media/teen-vogue-editor-alexi-mccammond.html.

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102 HASTINGS LAW JOURNAL [Vol. 74:79

Consider the example of Anjali Ramkissoon, a fourth-year medical resident

in Miami who got into a drunken altercation with an Uber driver.

153

In the video,

she is seen attempting to hit the driver, climbing into the car, and throwing

objects out of it while yelling, swearing, and demanding that he drive her home

without an Uber reservation.

154

She was fired from her job and has not since

been rehired—a lifelong penalty for conduct that, in the absence of social media,

would almost certainly have passed unnoticed and, in the criminal justice

system, would likely not have resulted in significant sanction.

These questions are a central preoccupation of criminal law, particularly

regarding the concept of proportionality. Proportionality is particularly

prevalent in capital cases and Eighth Amendment questions concerning the

extent to which excessive fines contravene constitutional boundaries in

sentencing.

155

Beyond capital cases, some scholars find that the Supreme Court

has skirted the opportunity to clearly define proportionality in modern

jurisprudence, even though the concept has strong roots in Anglo-American

legal thought.

156

And other scholars have shown that shaming penalties give rise

to dehumanization and social demotion once an individual’s negative personal

trait becomes visible to a public audience.

157

To make matters worse, shaming

penalties may be irreversible, given their public and stigmatizing nature, cutting

against the grain of the movement to cabin the publicity of criminal sanctions.

158

Relatedly, scholars have focused on the problem of “collateral consequences,”

in which individuals convicted of felonies endure lifelong stigma that leads to

difficulty getting jobs, ineligibility for public benefits such as public

housing, and disenfranchisement.

159

“Ban the box” initiatives and other policy

153

. Lance Dixon, Uber Spat Caught on Video Leads to Miami Doctor’s Firing, MIAMI HERALD (Apr. 22,

2016, 8:29 PM), https://www.miamiherald.com/news/local/community/miami-dade/downtown-miami/article

73411022.html.

154

. Id.

155

. See, e.g., Miller v. Alabama, 567 U.S. 460, 469 (2012) (internal quotation marks omitted) (“[T]he

concept of proportionality is central to the Eighth Amendment . . . and we view that concept less through a

historical prism than according to the evolving standards of decency that mark the progress of a maturing

society.”); Solem v. Helm, 463 U.S. 277, 284 (1983) (“The Eighth Amendment . . . prohibits not only barbaric

punishments, but also sentences that are disproportionate to the crime committed.”); see also generally Richard

S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality”

Relative to What?, 89 MINN. L. REV. 571 (2005).

156

. Frase, supra note 155, at 573–74, 579.

157

. Massaro, supra note 25, at 1886.

158

. Id. at 1883. A related fear is “stigma spillover,” wherein the shaming affects the family, friends, or

other associates of the individual stigmatized. Id. at 1932 n.250.

159

. See, e.g., Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of

Race and Dignity, 85 N.Y.U. L. REV. 457, 463–64 (2010) (arguing lawmakers failed to see the secondary effects

of stricter criminal justice policies overall and especially on people of color when expanding powers in the 1980s

and 1990s); Gabriel J Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional

Directions, 102 MARQ. L. REV. 233, 234–35 (2018) (arguing that the legal system is beginning to recognize that

for many people convicted of a crime, the greatest effect is not imprisonment, but being marked as a criminal

and subjected to legal disabilities); Jenny Roberts, The Mythical Divide Between Collateral and Direct

Consequences of Criminal Convictions: Involuntary Commitment of “Sexually Violent Predators”, 93 MINN. L.

REV. 670, 740 (2009) (arguing for a notice requirement regarding consequences of criminal convictions);

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 103

proposals have emerged to purge individuals of their criminal records.

160

Still,

these consequences are exacerbated in communities of color, who are

disproportionately convicted of felonies for the same conduct that would not

trigger a felony conviction for whites;

161

they are also sentenced to longer terms

of imprisonment

162

and have more difficulty getting hired to the same jobs even

without such convictions.

163

On social media, sanction may be highly disproportionate. When

something is posted to the internet and a wrongdoer is identified, that person is

routinely subjected to judgment or even punishment for an act that is minor or

that the offender may have already repented for. And the aforementioned social

media structure of acceleration, amplification, and democratization means that

a broader community of individuals quickly contributes to the administration of

such a sanction. Furthermore, once an online record of such wrongdoing exists,

it is there forever, meaning the consequences reverberate for the remainder of

an individual’s life.

4. The Conception of the Wrongdoer: Beyond Rehabilitation

How does cancel culture conceptualize wrongdoers? Most of the time, it

advances a “thin” conception of the wrongdoer as beyond rehabilitation. Not

only does cancel culture prescribe disproportionate sanctions; it also publicly

shames the sanctioned as morally deserving of such treatment, casting such

individuals as fatally flawed, without hope of reformation or reentry. In fact, far

from it; under this conception, individuals who have violated these norms should

be punished severely and permanently.

Even a casual glance on social media shows incredibly extreme shaming

language centered on moral desert. Take the case of the Covington School

students, whom the media wrongly portrayed as aggressors in a confrontation

with a group of indigenous demonstrators, and who were met with open calls for

shaming and physical violence.

164

Or, in the wake of the Capitol riots, actor Alec

JACOBS, supra note 26, at 3 (noting that the most serious consequence of an arrest is typically the resulting

collateral consequences).

160

. Tammy La Gorce, As ‘Ban the Box’ Spreads, Private Employers Still Have Questions, N.Y. TIMES

(Nov. 22, 2017), https://www.nytimes.com/2017/11/22/business/small-business-criminal-record.html.

161

. See generally THE SENT’G PROJECT, REPORT OF THE SENTENCING PROJECT TO THE UNITED NATIONS

SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA, AND

RELATED INTOLERANCE REGARDING RACIAL DISPARITIES IN THE UNITED STATES CRIMINAL JUSTICE SYSTEM

(2018), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.

162

. Id.

163

. Jhacova Williams & Valerie Wilson, Black Workers Endure Persistent Racial Disparities in

Employment Outcomes, ECON. POL’Y INST. (Aug. 27, 2019), https://www.epi.org/publication/labor-day-2019-

racial-disparities-in-employment/.

164

. See, e.g., Kathy Griffin (@kathrygriffin), TWITTER (Jan. 20, 2019, 5:05AM), https://twitter.com

/kathygriffin/status/1086927762634399744 (“Name these kids. I want NAMES. Shame them. If you think these

fuckers wouldn’t dox you in a heartbeat, think again.”). “To dox” is to publish private or identifying information

on the internet. Dox, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/dox (last visited Dec.

5, 2022). Nicholas Sandmann, one of the students, recovered a settlement from The Washington Post, NBC, and

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104 HASTINGS LAW JOURNAL [Vol. 74:79

Baldwin, who posted to Twitter: “Put Ted Cruz in the stocks and throw rotten

fruit and buckets of horse piss at him. Then ride him on a rail. Then tar and

feather him. And film it. For Netflix.”

165

Or consider one Twitter user discussing

Bill Cosby in a meme stating, “if he dies, he dies.”

166

This online norm of harshly punitive shaming language—by those on both

the left and right of the political aisle—may be “the start of a great renaissance

of public shaming” that conceives of the wrongdoer as beyond rehabilitation.

167

As noted above, public shaming has long been a central feature of any society,

exerting the same, if not more, influence on broader norms than the criminal

justice system.

168

And yet formal modes of public shaming, such as the pillory—

commonly depicted as a wooden frame on a fixed platform in the town square

through which an individual would place their head and hands—were eliminated

federally in 1839 and in all states by 1905.

169

In the late 1990s and early 2000s,

several prominent scholars debated the propriety of shaming penalties in our

criminal justice system as an alternative to prison or parole, but ultimately even

the movement’s leading advocates largely abandoned it.

170

CNN for their coverage of the events. Oliver Darcy, CNN Settles Lawsuit with Nick Sandmann Stemming from

Viral Video Controversy, CNN (Jan. 7, 2020, 6:06 PM), https://www.cnn.com/2020/01/07/media/cnn-settles-

lawsuit-viral-video/index.html.

165

. See Alec Baldwin (@AlecBaldwin), TWITTER (Jan. 7, 2021). Cf. Kelechi (@kelechnekoff), TWITTER

(Sept. 25, 2018, 7:18PM), https://twitter.com/kelechnekoff/status/1044727981137174528 (“Anyone feeling

sorry for Bill Cosby right now, has rapey tendencies.”); Kathy Griffin (@kathrygriffin), TWITTER (May 25,

2018, 10:15 AM), https://twitter.com/kathygriffin/status/1000016781078089728?lang=en (telling Harvey

Weinstein to “[r]ot in prison you piece of shit”); How the Internet Descended on the Man Who Killed Cecil the

Lion, supra note 124 (describing tweets calling Walter Palmer a bloodthirsty trophy hunter and joking that he

shoots his dental patients with bows and arrows); RONSON, supra note 43, at 8 (“These fucked up academics

deserve to die painfully . . . .”); RONSON, supra, at 120 (“Kill her.”).

166

. El Galan de la Chingada (@nanztop), TWITTER (Apr. 27, 2018, 9:34 AM), https://twitter.com/nanztop

/status/989860438841098240.

167

. RONSON, supra note 43, at 10.

168

. Posner, supra note 19 (“Shaming has always been extraordinarily important—often, even more

important than the formal legal system.”).

169

. Ray, supra note 53.

170

. Massaro, supra note 25, at 1884 (“The revival of shaming springs from profound and widespread

dissatisfaction with existing methods of punishment.”). In this regard, the literature breaks down into two

categories. The first mooted the propriety of shaming penalties but ultimately concluded them to be too

problematic. This body of work was largely triggered by What Do Alternative Sanctions Mean?, in which Dan

Kahan argues that shaming penalties would likely deter and incapacitate as, or nearly as well as, short terms of

incarceration without imposing nearly so much cost on society or suffering on offenders. Dan Kahan, What Do

Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 594 (1996). This triggered a flurry of critical responses

from scholars such as Martha Nussbaum and Jim Whitman. See NUSSBAUM, supra note 43, at 233 (“Kahan does

not seek to remove humiliation from shame penalties . . . [s]o his proposal is vulnerable to the dignity objection

directly.”); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1059

(1998) (“[W]e should think of shame sanctions as wrong because they involve a species of lynch justice, and a

peculiarly disturbing species of lynch justice at that—a species of official lynch justice.”). Kahan however, in

his 2006 article, What’s Really Wrong with Shaming Sanctions, recanted this argument. Kahan, supra note 25,

at 2077 (observing that in the expressive dimension of punishment, the public expects punishments not only to

protect them from harm or inflict pain on offenders, but also to express moral disapprobation). Shaming penalties

occasionally recur in legal scholarship, though not with the same collective attention as in the aforementioned

period. See generally, e.g., JENNIFER JACQUET, IS SHAME NECESSARY?: NEW USES FOR AN OLD TOOL (2015).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 105

Today, while judges occasionally hand down shaming penalties, shaming

is not a formal part of mainstream criminal law enforcement, which more often

turns on probation, fines, and incarceration.

171

More to the point, the broad

consensus among scholars and policymakers is that our system of mass

incarceration is overly punitive, exhibiting a “decline of the rehabilitative

ideal.”

172

One nascent trend in recent years has been a more robust push for

rehabilitation of criminal defendants, as opposed to incarceration or shaming.

For example, the 2018 First Step Act looks at sentencing reform and other areas

of the criminal justice system in order to refocus the American penal system on

rehabilitation.

173

In sum, criminal law theory clarifies that cancel culture shaming is a largely

retributivist form of punishment,

174

focusing on moral desert, as opposed to

rehabilitative. As every first-year law student knows, criminal law scholarship

has long focused on justifications for punishment—retribution, deterrence,

incapacitation, restoration, etc. In the world of cancel culture, the trend is away

from rehabilitation and almost completely in the mode of retribution.

175

It aims

not merely to punish individuals for censured conduct, but to punish the whole

individual permanently for certain conduct, even conduct that is not so flagrant.

B. “MOB VENGEANCE” AND CULTURAL ANXIETY

What is the broader effect of this imprecise and punitive process? Cancel

culture has a deleterious societal impact, fostering broader collective anxiety

about “mob vengeance.”

176

As a society, we increasingly live in fear of the next

171

. See, e.g., United States v. Gementera, 379 F.3d 596, 598 (9th Cir. 2004) (requiring a defendant

convicted of mail theft to stand outside post office wearing sign that read “I stole mail. This is my punishment,”

as a condition of release from incarceration); Goldschmitt v. State, 490 So. 2d 123, 126 (Fla. Dist. Ct. App.

1986) (affirming probation requirement that driver convicted of driving under the influence must place a bumper

sticker on his car that reads “CONVICTED D.U.I. – RESTRICTED LICENSE”); RONSON, supra note 43, at

82–83 (describing a Houston judge’s predilection for public shaming penalties and criticism by the ACLU).

172

. GARLAND, supra note 29, at 8 (citing FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL

(1981)) (“If asked to describe the major changes in penal policy in the last 30 years, most insiders would

undoubtedly mention ‘the decline of the rehabilitative ideal.’”).

173

. See generally, e.g., Shon Hopwood, The Effort To Reform the Federal Criminal Justice System,

128 YALE L.J. 791 (2019); Ames Grawert, What Is the First Step Act — and What’s Happening with It?,

BRENNAN CTR. FOR JUST. (June 23, 2020), https://www.brennancenter.org/our-work/research-reports/what-first-

step-act-and-whats-happening-it.

174

. The other major theory of punishment relevant to cancel culture is deterrence, which is either specific

(disincentivizing the offender from recidivism) or general (disincentivizing others from engaging in the same

conduct). To some degree, cancel culture exhibits this form of punishment as well. Further on, this Article will

also discuss the classic Kantian critique of such punishment: that it uses others as a means to an end. But the

popular sentiment of cancel culture is more retributivist, focusing on the moral desert of offenders. See infra

Part II.B.

175

. GARLAND, supra note 29, at 8–9 (describing the decline of the rehabilitative ideal and the reemergence

of explicitly retributive and deliberately harsh retributive sanctions); JOHN PFAFF, LOCKED IN: THE TRUE CAUSES

OF MASS INCARCERATION 190–91 (2017).

176

. See, e.g., Jessica Napoli, ‘Mr. Bean’ Star Rowan Atkinson Compares Cancel Culture to a ‘Medieval

Mob’, FOX NEWS (Jan. 5 2021, 4:19 PM), https://www.foxnews.com/entertainment/rowan-atkinson-cancel-

culture; Aja Romano, Why We Can’t Stop Fighting About Cancel Culture, VOX (Aug. 25, 2020, 12:03 PM),

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106 HASTINGS LAW JOURNAL [Vol. 74:79

viral video that may “hijack” our collective attention. Celebrities and laypeople

express anxiety about it.

177

Our art foreshadowed,

178

and now grapples with it.

179

The fear of such mob vengeance may be most viscerally felt by younger

individuals in our society, who fear the related effect of “call-out culture,”

wherein they are labeled a certain “-ism” due to certain posts on social media.

Some argue that as a result, teenage rates of anxiety, depression, and even

suicide are skyrocketing.

180

Such anxiety has an intersectional component.

181

While it is difficult to

quantify, it may be the case that cancel culture singles out women and minorities

more readily for online public ridicule.

182

For example, Danielle Citron has

found that women are, in particular, disproportionately the targets of what are

effectively hate crimes in cyberspace.

183

Many of the examples provided above

have included women and minorities as the targets of particularly aggressive

canceling—not white or wealthy individuals. It is no coincidence that more

https://www.vox.com/culture/2019/12/30/20879720/what-is-cancel-culture-explained-history-debate;

McWhorter, supra note 5.

177

. See, e.g., Taylor Swift, 30 Things I Learned Before Turning 30, ELLE (Mar. 6, 2019), https://www

.elle.com/culture/celebrities/a26628467/taylor-swift-30th-birthday-lessons/ (“I learned that I have friends and

fans in my life who don’t care if I’m #canceled.”); Joseph Guzman, Jay-Z Blasts Cancel Culture, THE HILL (Apr.

29, 2021), https://thehill.com/changing-america/enrichment/arts-culture/550920-jay-z-blasts-cancel-culture

(“These kids, it’s unbelievable. Imagine having a microphone and you’re asked about social justice questions at

18 years old? It’s like, ‘What? I’m meant to know the answer, and if I don’t answer the correct way, if I don’t

say everything right, even if my intentions are right, and I don’t say the same right thing, it’s going to be

everywhere.’”).

178

. See generally, e.g., PHILIP ROTH, THE HUMAN STAIN (2000) (concerning a professor who resigns after

using racially insensitive language); Black Mirror: White Christmas (Netflix broadcast Dec. 16, 2014)

(portraying a convicted sex offender who is visually and auditorily “blocked” from others’ perception in a near-

future society where human vision and hearing is technologically enhanced).

179

. See, e.g., ICE CUBE, Trying To Maintain, on DEATH CERTIFICATE (Paramount Recording Studios 1991);

EMINEM, Tone Deaf, on MUSIC TO BE MURDERED BY (Rec. One, Effigy, The ICU 2020); Lil Nas X Apologizes

for Satan Shoe, YOUTUBE (Mar. 28, 2021), https://www.youtube.com/watch?v=ESf8Un3g9zM. See generally

ADRIENNE MAREE BROWN, WE WILL NOT CANCEL US: AND OTHER DREAMS OF TRANSFORMATIVE JUSTICE

(2020).

180

. See generally Jonathan Haidt & Jean Twenge, Is There an Increase in Adolescent Mood Disorders,

Self-Harm, and Suicide Since 2010 in the USA and UK? A Review (2019) (unpublished manuscript) (on file

with New York University); Jonathan Haidt & Jean Twenge, Social Media Use and Mental Health: A Review

(2019) (unpublished manuscript) (on file with New York University).

181

. Some have argued that gender inequality in the film industry caused further damage to Winona Ryder’s

career by exacerbating the wrongdoing of her shoplifting than it would have done to the careers of her male

costars, such as Johnny Depp, for the same conduct. Scott Mendelson, The Grim Reasons Winona Ryder

Disappeared from Hollywood, FORBES (Sept. 7, 2018, 1:00 PM), https://www.forbes.com/sites/scott

mendelson/2018/09/07/grim-truth-winona-ryder-hollywood-keanu-reeves-johnny-depp-stranger-things/?sh=1f

9b780e51f3 (arguing that gender inequality caused her shoplifting scandal to threaten her career to a greater

degree than such an incident would have done to the career of a man in Hollywood).

182

. See Claire Lowe, Why Cancel Culture Is Immensely Worse for Women, HUMS., https://vocal.media

/humans/why-cancel-culture-is-immensely-worse-for-women (last visited Dec. 5, 2022).

183

. CITRON, supra note 31, at 14; RONSON, supra note 43, at 8, 119, 208–09 (describing anti-female slurs

and the proliferation of imagery of violence against women on Twitter).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 107

recently, women and minorities vocalized fear of online harassment in the wake

of news that Elon Musk was buying Twitter.

184

Criminal law theory helps us understand many of these trends.

185

Public

shaming triggers stigma and anxiety, which may only diminish

once an individual is distanced from the group.

186

Furthermore, as is generally

recognized, “[j]ustice by the mob is not the impartial, deliberative, neutral justice

that a liberal-democratic society typically prizes.”

187

The frequent dynamic is

that a perceived act of wrongdoing triggers a widespread condemnatory response

for which no individual takes responsibility.

188

The masses typically respond

instinctively and harshly, emphasizing their own virtue through

condemnation of another.

189

On one hand, we may perceive such collective

attention as necessary to redress flagrant conduct, triggering effective, general

deterrence—arguably the theory of punishment best suited to such widespread

and permanent public censure.

190

On the other hand, general deterrence brings

with it the classic Kantian critique that it is immoral to use an individual as a

means to an end.

191

We fear that we may be publicly censured to deter others

from engaging in similar conduct, but we also fear that our actions may be

misconstrued (evidentiary), violating some norm that we are unfamiliar with

(notice), leading to public shaming, harassment or condemnation

(proportionality), and a permanent stigma that we are beyond reformation

(retributivist, anti-rehabilitative). Consider this account of one journalist

describing the historical growth of Twitter shaming:

After a while, it wasn’t just transgressions we were keenly watchful for. It was

misspeakings. Fury at the terribleness of other people had started to consume

us a lot. And the rage that swirled around seemed increasingly in disproportion

to whatever stupid thing some celebrity had said. It felt different to satire or

journalism or criticism. It felt like punishment. In fact, it felt weird and empty

when there wasn’t anyone to be furious about. The days between shamings

felt like days picking at fingernails, treading water.

192

184

. See Pranshu Verma, Elon Musk Wants ‘Free Speech’ on Twitter. But for Whom?, WASH. POST (May

6, 2022, 7:00 AM), https://www.washingtonpost.com/technology/2022/05/06/twitter-harassment/.

185

. This is especially the case given that contemporary U.S. criminal justice policy has been plagued by

both politicization and populism, as opposed to expertise and evidence-based research. GARLAND, supra note

29, at 13.

186

. Massaro, supra note 25.

187

. NUSSBAUM, supra note 43, at 234.

188

. Posner, supra note 19.

189

. Id.

190

. JACOBS, supra note 26, at 222 (“A sentencing scheme that seeks to maximize general deterrence would

threaten criminal law violators with public exposure and community censure.”); BRAITHWAITE, supra note 47,

at 81 (“Shame not only specifically deters the shamed offender, it also generally deters many others who also

wish to avoid shame and who participate in or become aware of the incident of shaming.”).

191

. See generally IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS (2012).

192

. RONSON, supra note 43, at 88–89.

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108 HASTINGS LAW JOURNAL [Vol. 74:79

Notice the parallel between this journalistic cultural insight and “net-

widening,” wherein scholars Martha Nussbaum and Steven Schulhofer have

identified pervasive criminal penalties that put more people under social control:

[T]he reform (such as early parole, juvenile courts, et cetera) is initially

packaged as a way to divert low-level, less dangerous offenders to a regime

that is less harsh than prison. [But soon thereafter] a shift occurs: the allegedly

“lighter” penalty . . . is used, instead, for people who would probably have

gotten light probation or would not have been prosecuted at all. . . . So instead

of being diverted out of prison the shamed person is diverted into social

control and penalties they otherwise would have escaped.

193

At the extreme, this freezing out of particular human conduct may also

foster polarization—a mix of solidarity within social groups, but broader

division between groups.

194

First, theorists of sociological labeling note that

criminal labeling may push stigmatized offenders into closer association,

reinforcing antisocial attitudes and values.

195

In other words, if such individuals’

egos are not permanently shattered, they may instead feel heightened alienation

from societal norms, thereby accelerating recidivism.

196

Second, if individuals

are concerned that their activity may be perceived as offensive, they will feel

tremendous pressure to adhere to more rigid and extreme norms. This was the

thrust of Dan Kahan’s aforementioned critique of shaming penalties.

197

In turn,

certain communities align almost entirely around certain viewpoints. This is a

symptom of social media usage’s broader tendency to invoke outrage.

198

C. A COMPARISON OF LAW AND CULTURE: THE CASE OF EUROPE

A comparative lens clarifies and fortifies how these problematic aspects of

cancel culture echo throughout our contemporary American system. I will take

Western Europe as my point of comparison. Of course, I do so recognizing that

to compare any legal system is to generalize,

199

and that any discussion of the

193

. NUSSBAUM, supra note 43, at 236–37.

194

. See Steven Arrigg Koh, When Should Prosecutors Indict? (unpublished manuscript) (on file with

author).

195

. JACOBS, supra note 26, at 219 (citing HOWARD BECKER, OUTSIDERS: STUDIES IN THE SOCIOLOGY OF

DEVIANCE (1963)); BRAITHWAITE, supra note 47, at 81 (“[Stigmatization] can be counterproductive by breaking

attachments to those who might shame future criminality and by increasing the attractiveness of groups that

provide social support for crime.”); see also generally EDWIN LEMERT, SOCIAL PATHOLOGY: A SYSTEMATIC

APPROACH TO THE THEORY OF SOCIOPATHIC BEHAVIOR (1951); EDWIN SCHUR, LABELLING DEVIANT BEHAVIOR

(1971).

196

. NUSSBAUM, supra note 43, at 236.

197

. Kahan, supra note 25, at 2079.

198

. Rani Molla, Social Media Is Making a Bad Political Situation Worse, VOX (Nov. 10, 2020, 1:10 PM),

https://www.vox.com/recode/21534345/polarization-election-social-media-filter-bubble; see also THE SOCIAL

DILEMMA (Exposure Labs 2020).

199

. See, e.g., JACOBS, supra note 26, at 160 (“While there are some national differences, European

countries criminal records policies have much in common.”); GARLAND, supra note 29, at vii (“In our attempts

to make sense of social life, there is an unavoidable tension between broad generalization and the specification

of empirical particulars.”); Jonathan Simon, Fear and Loathing in Late Modernity: Reflections on the Cultural

Sources of Mass Imprisonment in the United States, 3 PUNISHMENT & SOC’Y 21, 31 (2001) (“Crimes in the USA

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 109

relationship between culture and law inevitably raises questions about their

definitions and interrelationship.

200

And yet meaningful and important work on

comparative criminal law and culture has a long and robust history;

201

it thus

makes sense to continue the project of comparative criminal law from the

emerging angle of cancel culture and social media.

European popular debates regarding cancel culture reflect the

phenomenon’s American flavor. France’s engagement with cancel culture more

specifically illustrates this. Two opposing sentiments exist there regarding

cancel culture. One emphasizes that cancel culture is American and has

“infected” French culture.

202

In fact, many well-known and respected French

intellectuals wrote a public manifesto in French newspaper Le Monde, stating

that the “import of Anglo-Saxon communitarian ideologies, intellectual

conformism, fear, and political correctness are a real threat to

our universities.”

203

In response, antiracist academics signed a counterletter to

promote “international solidarity,” criticizing the manifesto’s agreement with

French Minister of Education, Jean-Michel Blanquer, that “indigenist, racialist,

and ‘decolonial’ ideologies imported from North America” were responsible for

leading an eighteen-year-old French student to violently attack a high school

and genetically altered foods in Europe function as two of the preferred risks of . . . global/postmodern

societies.”). As Josh Kleinfeld rightfully notes, that some say one cannot speak broadly of “American” or

“European” criminal justice systems has a superficial appeal but is ultimately lacking. Certain broad trends

characterize the United States (a federalized jurisdiction that permits the death penalty in some states, brought

together by the U.S. Constitution and Supreme Court) in comparison to Europe (a supranational jurisdiction that

forbids the death penalty, brought together by the European Union, European Court of Human Rights, and other

transnational institutions). See Kleinfeld, supra note 29, at 945–46 (“European and American criminal law are

two complex and internally divergent sets, but also . . . sets with some common characteristics, and cross-cultural

generalization is useful provided one goes about it with reasonable care.”).

200

. See generally Menachem Mautner, Three Approaches to Law and Culture, 96 CORNELL L. REV. 839

(2011); see also GARLAND, supra note 29, at vii (“In our attempts to make sense of social life, there is an

unavoidable tension between broad generalization and the specification of empirical particulars.”). I also

recognize that culture is a contested concept in the sociological literature. See, e.g., Clifford Geertz, Thick

Description: Toward an Interpretive Theory of Culture, in READINGS IN THE PHILOSOPHY OF SOCIAL SCIENCE

213 (1994); see also generally Ann Swidler, Culture in Action: Symbols and Strategies, 51 AM. SOC. REV. 273

(1986).

201

. See generally, e.g., Mirjan Damaska, Structure of Authority and Comparative Criminal Procedure,

84 YALE L.J. 480 (1975); Luis Chiesa, Comparative Criminal Law, in THE OXFORD HANDBOOK OF CRIMINAL

LAW 1089 (Markus D. Dubber & Tatjana Hörnle eds., 2014); JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL

PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2005); MARIANNE WADE & ERIK

LUNA, THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE (1st ed. 2012); see also JACOBS, supra note 26, at

221 (“In Europe, offender rehabilitation is the reigning purpose of sentencing.”); GARLAND, supra note 29, at

vii (comparing and describing the culture of crime control in the United States and United Kingdom).

202

. See Norimitsu Onishi, Will American Ideas Tear France Apart? Some of Its Leaders Think So, N.Y.

TIMES (Feb. 10, 2021), https://www.nytimes.com/2021/02/09/world/europe/france-threat-american-universities

.html; Mattia Ferraresi, Cancel Culture Comes to France, WALL ST. J. (Feb. 6, 2020), https://www.wsj

.com/articles/cancel-culture-comes-to-france-11581004454; About a Hundred Academics Warn: “On Islamism,

What Threatens Us Is the Persistence of Denial”, LE MONDE (Oct. 31, 2020), https://www.lemonde

.fr/idees/article/2020/10/31/une-centaine-d-universitaires-alertent-sur-l-islamisme-ce-qui-nous-menace-c-est-la

-persistance-du-deni_6057989_3232.html [hereinafter About a Hundred Academics Warn].

203

. About a Hundred Academics Warn, supra note 202.

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110 HASTINGS LAW JOURNAL [Vol. 74:79

teacher in October 2020.

204

Even President Emmanuel Macron weighed in,

designating as problematic “certain social science theories entirely imported

from the U.S.”

205

Why might European countries like France be so hostile to cancel culture?

Comparative criminal law scholars have long described the harshness of

American punitive culture vis-à-vis Europe.

206

As Joshua Kleinfeld has noted,

American punishment conceptualizes offenders as immutably morally deformed

people instead of as ordinary people who have committed crimes.

207

Given this,

criminality is a permanent feature and not merely the momentary deviance

of an otherwise moral person.

208

As a result, American punishment culture

expressively denies offenders’ claims to membership in the community and to

the moral humanity in virtue of which a human being is rights-bearing.

209

contrast, European culture advances a conception of criminality as always

mutable and never devaluing, wherein actors are ultimately distanced from their

acts. One reason advanced for this difference is that, historically, Europe’s

system of criminal punishment diverged starkly by class, with the lower classes

being disproportionately punished. As a result, Europeans arguably have greater

collective sensitivity to individual dignity and disparities in criminal

sentencing,

210

and their punishment reflects even the worst offenders’ claims to

social membership and rights.

211

We see such jurisdictional contrast in myriad aspects of the American

criminal justice system. America is distinctive in its use of the death penalty, life

imprisonment without parole, consecutive prison terms, and inferior prison

quality. Additionally, scholars have noted that American punitive culture is

characterized by “the eternal criminal record,”

212

whereas Europe lacks online

sex offender registries and employer access to criminal records.

213

Indeed,

204

. Alana Lentin et al., Open Letter: the Threat of Academic Authoritarianism—International Solidarity

with Antiracist Academics in France, OPENDEMOCRACY (Nov. 5, 2020, 10:08 AM), https://www.open

democracy.net/en/can-europe-make-it/open-letter-the-threat-of-academic-authoritarianism-international-

solidarity-with-antiracist-academics-in-france/.

205

. Emmanuel Macron, President of Fr., Speech at Les Mureaux: Fight Against Separatism – the Republic

in Action (Oct. 2, 2020), https://www.diplomatie.gouv.fr/en/coming-to-france/france-facts/secularism-and-

religious-freedom-in-france-63815/article/fight-against-separatism-the-republic-in-action-speech-by-

emmanuel-macron.

206

. See, e.g., OHLIN, supra note 76.

207

. See, e.g., Kleinfeld, supra note 29, at 941.

208

. Id. at 1006.

209

. Id. at 933–1036.

210

. NUSSBAUM, supra note 43, at 247.

211

. Kleinfeld, supra note 29, at 933; JACOBS, supra note 26, at 221 (“In Europe, offender rehabilitation is

the reigning purpose of sentencing.”).

212

. See generally JACOBS, supra note 26.

213

. See generally James B. Jacobs & Dimitra Blitsa, Sharing Criminal Records: The United States, the

European Union and Interpol Compared, 30 LOY. L.A. INT’L & COMP. L. REV. 125 (2008) (studying the laws

surrounding U.S., international, and European criminal records policies); James Jacobs & Dimitra Blista,

Paedophiles, Employment Disqualification, and European Integration (N.Y.U Sch. of L., Working Paper No.

11-73, 2011), https://ssrn.com/abstract=1940060 (examining European movements for greater public access to

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 111

federal and state criminal record repositories contain criminal records for

approximately twenty-five percent of the U.S. population, a grim aspect of “U.S.

criminal record exceptionalism.”

214

By contrast, in Europe, individual criminal

histories are created by, and available only to, the police; access is not available

to non-police agencies, media, or the general public.

215

Furthermore, article 6 of

the Convention for the Protection of Individuals with Regard to Automatic

Processing of Personal Data, a 1981 Council of Europe treaty, forbids the

automatic processing of criminal convictions—as well as, more generally,

personal data such as racial origin, health, or sexual life—absent appropriate

safeguards.

216

This is not just a difference in criminal justice systems; it also appears in

European legal regulation of online spaces. Whereas the United States has yet

to seriously discuss the downsides of online effects on people’s livelihood, the

European Union has advanced a legal “right to be forgotten.” First outlined in

the Data Protection Directive, the right to be forgotten was disclosed as a draft

in 2012, then adopted by the European Parliament in 2014 and implemented into

E.U. law in 2016.

217

As now outlined in article 17 of the General Data Protection

Regulation of the European Union, the right to erasure provides for a formal

process and reasoning for individuals to petition data controllers (companies) to

erase specific data about them without undue delay.

218

The European Court of

Justice has held that this only applies to E.U.-facing websites; however,

companies should try to restrict or discourage E.U. users from accessing that

information on non-E.U.-facing websites.

219

The right to be forgotten in the

context of cancel culture can mostly be understood as an opportunity for

individuals in the European Union to have sites such as Google delist search

results from their past that impede their life, so long as they can reasonably

articulate their request through article 17 of the General Data Protection

Regulation.

220

This broadly tracks Europe’s “memoryless” approach to criminal

sex offender crimes); James Jacobs & Elena Larrauri, Are Criminal Convictions a Public Matter? The USA and

Spain, 14 PUNISHMENT & SOC’Y 3 (2012) (comparing U.S. and Spanish felon record confidentiality); James B.

Jacobs & Elena Larrauri, European Criminal Records & Ex-Offender Employment, in OXFORD HANDBOOK

TOPICS IN CRIMINOLOGY AND CRIMINAL JUSTICE (2012) (ebook).

214

. JACOBS, supra note 26, at 1, 159.

215

. Id. at 159–61.

216

. Council of Europe, Convention for the Protection of Individuals with Regard to Automatic Processing

of Personal Data, Jan. 28, 1981, E.T.S.; JACOBS, supra note 26, at 159–61.

217

. See The History of the General Data Protection Regulation, EUR. DATA PROT. SUPERVISOR, https://

edps.europa.eu/data-protection/data-protection/legislation/history-general-data-protection-regulation_en (last

visited Dec. 5, 2022); see also Directive 2016/679, of the European Parliament and of the Council of 27 April

2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free

Movement of Such Data, and Repealing Directive 95/46/EC, 2016 O.J. (L 119) 12.

218

. ALAN CHARLES RAUL, THE PRIVACY, DATA PROTECTION AND CYBERSECURITY LAW REVIEW (Alan

Charles Raul ed., 6th ed. 2019).

219

. Adam Satariano, ‘Right To Be Forgotten’ Privacy Rule Is Limited by Europe’s Top Court, N.Y. TIMES

(Sept. 24, 2019), https://www.nytimes.com/2019/09/24/technology/europe-google-right-to-be-forgotten.html.

220

. Directive 2016/679, supra note 217, at 3.

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112 HASTINGS LAW JOURNAL [Vol. 74:79

history, which focuses more on criminal acts, whereas the American approach

heavily emphasizes criminal history for purposes of sentencing.

221

Cancel culture reflects the opposite ethos: a harsh punishment system that

attacks individuals as immutably morally deformed, resulting in a permanent

online record of wrongdoing.

III. THE FUTURE OF CANCEL CULTURE:

FROM RETRIBUTION TO REINTEGRATION

Can we retain the benefits of this online system of referral and shaming

while redressing its problematic process? This Part will address a few publicly

mooted social media reforms, revealing that such reforms overlook the

interrelationship between law and culture. As argued above, much of the

canceling phenomenon is attributable to accountability gaps in criminal justice.

Thus, under this view, some of cancel culture’s problems will only be resolved

once these deeper societal problems are addressed. This Part argues that

democratically-oriented criminal justice reforms that redress over- and under-

enforcement may ameliorate some of cancel culture’s excesses, and,

furthermore, that cancel culture itself may be—counterintuitively—part of the

solution by shedding public light on unresolved accountability issues. But it will

also show that the deepest underlying problem is contemporary American

retributivist impulses. To redress this, we must renew collective focus on

restoration and reintegration.

A. THE PARTIAL PROMISE OF SOCIAL MEDIA REFORM

Popular reform proposals focus on the law and structure of social media

itself.

222

They do so under the theory that social media has warped our national

conversation—as is well known, canceling did not happen on the first day of

social media use, but evolved to become more aggressive over time.

223

Thus,

certain legal and structural fixes may ameliorate some of cancel culture’s

extremes.

Legislative proposals may induce social media companies to remove more

online content. One question is how, if at all, to change § 230 of the

Communications Decency Act of 1996,

224

by removing immunity for social

media companies.

225

In particular, the Justice Department proposed changes that

221

. Kleinfeld, supra note 29, at 977–79 (“In America, we prosecute crimes, but we sentence criminals.”).

For example, recidivism in Germany, France, and Italy does not trigger any mandatory sentences. Id. at 979.

222

. Ezra Klein, A Different Way of Thinking About Cancel Culture, N.Y. TIMES (Apr. 18, 2021), https://

www.nytimes.com/2021/04/18/opinion/cancel-culture-social-media.html (discussing the function of Twitter’s

“trending box” and the way it highlights certain stupid or offensive conduct).

223

. RONSON, supra note 43, at 88 (“In the early days of Twitter there were no shamings.”).

224

. 47 U.S.C. § 230 (“No provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information content provider.”).

225

. See MINOW, supra note 40, at 108 (“Although some still defend Section 230 as a spur to free speech,

job creation, small business development, and consumer reviews, scholars and lawmakers from a variety of

viewpoints and political positions in the United States have considered altering or eliminating Section 230

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 113

would strip platforms of § 230 immunity if social media companies host content

that falls into specific categories

226

—for example, hosting content that is

“particularly egregious” (such as child exploitation), or violates a federal

criminal law.

227

The proposal further suggests that § 230 immunity should not

apply to suits brought by certain government agencies such as the Federal Trade

Commission, thereby allowing the federal government to sue platforms directly

for content posted by their users.

228

Policymakers such as Senator Hawley have

focused reforms on barring platforms from § 230 immunity with moderation

practices that appear to be political censorship.

229

And House Democrats have

introduced the “Protecting Americans from Dangerous Algorithms Act,” under

which a platform whose algorithms promote extremist content related to acts of

terrorism or civil rights violations would lose § 230 immunity.

230

Such lawsuits

against social media companies could moderate cancel culture—for good or

bad—because the companies may be incentivized to reduce litigation risk by

censoring posts or removing users who engage in any online conduct with real-

world consequences.

Other proposed changes are not legal, but structural. One option is to have

users broadly monitor content online. The most salient example is the possibility

of a “dislike” or “downvote” button on Facebook and other social media sites;

however, this has largely failed in trial runs and has been

criticized by academics

231

and journalists who have experimented with it.

232

second option is effective moderators, though this also carries adjudicative

immunity.”); Klonick, supra note 37, at 1603–15; see also generally Benjamin Edelman & Abbey Stemler, From

the Digital to the Physical: Federal Limitations on Regulating Online Marketplaces, 56 HARV. J. ON LEGIS. 141

(2019) (arguing that § 230’s current interpretation is too broad and prevents necessary regulation); Daisuke

Wakabayashi, Legal Shield for Social Media Is Targeted by Lawmakers, N.Y. TIMES (May 28, 2020), https://

www.nytimes.com/2020/05/28/business/section-230-internet-speech.html.

226

. Zoe Bedell & John Major, What’s Next for Section 230? A Roundup of Proposals, LAWFARE (July 29,

2020, 9:01AM), https://www.lawfareblog.com/whats-next-section-230-roundup-proposals.

227

. Id.

228

. Id.

229

. Id.

230

. Libby Baney, Matthew Rubin & Sarah-Lloyd Stevenson, Online Communications and Content: How

Section 230 Reform Has Catapulted into Relevancy, JD SUPRA (Oct. 27, 2020), https://www.jdsupra.com

/legalnews/freedom-of-digital-speech-tracking-83454; Rebecca Kern, Democrats Unveil Bill To Hold Tech

Liable for Extremist Content, BLOOMBERG L. (Oct. 20, 2020, 3:20 PM), https://news.bloomberglaw.com/tech-

and-telecom-law/democrats-unveil-bill-to-hold-tech-liable-for-extremist-content.

231

. Justin Cheng, Cristian Danescu-Niculescu-Mizil & Jure Leskovec, How Community Feedback Shapes

User Behavior, PHYSICS & SOC’Y (2014), https://cs.stanford.edu/people/jure/pubs/disqus-icwsm14.pdf.

232

. See, e.g., Rachel Withers, The Dangerous Thrill of Downvoting “Bad Comments” on Facebook, SLATE

(May 8, 2018, 3:58 PM), https://slate.com/technology/2018/05/the-facebook-upvote-and-downvote-experiment

-is-a-bust.html (“With its anonymity and reliance on mob rule, it’s the perfect feature for trolls and bots, lefties

and conservatives—the whole menagerie of internet creatures—to silence opinions through effective organizing

and well-policed echo chambers.”); Kalhan Rosenblatt, Twitter Is Testing Downvotes. Experts Are Split on How

They Would Affect the Platform., NBC NEWS (July 22, 2021, 3:40 PM), https://www.nbcnews.com/tech/social-

media/twitter-testing-downvotes-experts-are-split-how-it-ll-affect-n1274744 (noting that Twitter has recently

been experimenting with a downvoting system that academics fear could have negative impacts such as

increasing online abuse and weaponizing the downvote as a tool to silence marginalized groups).

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114 HASTINGS LAW JOURNAL [Vol. 74:79

risks.

233

For example, some view Reddit as a more desirable forum for public

discourse, given that moderators remove particularly offensive conduct from

various communities according to the stated process within such

communities.

234

But moderation brings with it the inevitable questions of notice

and proportionality of sanction, not to mention the question of who

adjudicates.

235

For example, President Trump was permanently banned from

Twitter and indefinitely banned from Facebook and Instagram for posts that

incited the violence of the January 2021 Capitol riot—a move alternatively

praised or criticized, largely along partisan lines.

236

While such social media reform may be beneficial, it is only a partial fix

obscuring the deeper human and cultural impulses animating its use. Thus, the

next and more meaningful category of reform focuses on the intersection

between cancel culture and accountability.

B. THE NEED FOR DEMOCRATIC RESPONSIVENESS & CRIMINAL JUSTICE

REFORM

As described above, cancel culture is gap filling, promoting accountability

in the absence of criminal or civil sanction. If this theory is correct, then cancel

culture will become less common and punitive when accountability gaps are

closed.

One way to close such gaps is through criminal justice reform, by

addressing cases of over- and under-enforcement of criminal law. If such

accountability gaps are redressed, cancel culture may step in less often to shame

or refer. What should such reforms look like? Recent scholarship has pushed for

fewer criminal offenses, more declination and diversion, community policing,

and prosecutorial and other criminal legal actors being embedded in

local communities.

237

Furthermore, recent reform efforts have focused on body

cameras and race-related trainings within police departments themselves.

238

233

. See generally Klonick, supra note 37; Kate Klonick, The Facebook Oversight Board: Creating an

Independent Institution To Adjudicate Online Free Expression, 129 YALE L.J. 2418 (2020).

234

. Virginia Heffernan, Our Best Hope for Civil Discourse Online Is on . . . Reddit, WIRED (Jan. 16, 2018,

6:00 AM), https://www.wired.com/story/free-speech-issue-reddit-change-my-view/. Some proposals may even

include artificial intelligence for moderation, though this could lead to greater censorship of online communities.

Lee Rainie, Janna Anderson & Jonathan Albright, The Future of Free Speech, Trolls, Anonymity and Fake News

Online, PEW RSCH. CTR. (Mar. 29, 2017) https://www.pewresearch.org/internet/2017/03/29/the-future-of-free-

speech-trolls-anonymity-and-fake-news-online/; A Positive Platform, STUDIO PROJECT, https://www.studio-

output.com/news/a-positive-platform/ (last visited Dec. 5, 2022) (noting that AI may help to flag profiles of

individuals experiencing mental health and depression).

235

. See generally Klonick, supra note 37.

236

. Hannah Denham, These Are the Platforms That Have Banned Trump and His Allies, WASH. POST (Jan.

14, 2021, 6:11 PM), https://www.washingtonpost.com/technology/2021/01/11/trump-banned-social-media.

237

. Joshua Kleinfield, Laura I. Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John

Braithwaite, Robert P. Burns, R.A. Duff, Albert W. Dzur & Thomas F. Geraghty, The White Paper of

Democratic Criminal Justice, 111 NW. U. L. REV. 1693, 1698–1700 (2017).

238

. See generally Roseanna Sommers, Note, Will Putting Cameras on Police Reduce Polarization?,

125 YALE L.J. 1304 (2016); Shira Ovide, Can Body Cameras Improve Policing?, N.Y. TIMES (Dec. 7, 2020),

https://www.nytimes.com/2020/12/07/technology/body-cameras-police.html.

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 115

Others have addressed the need to better address issues like police violence and

sexual assault.

239

A criminal justice system better calibrated to such democratic

ideals would mean that someone like Bill Cosby could not stay at large for years

before trending on social media. Cancel culture itself may play a role in mapping

this space: if cancel culture is a vehicle for advancing accountability around such

causes, we may live through a period in which social media highlights these

inequities.

240

For example, the discourse around anti-Asian racism in the wake

of the Atlanta spa shootings helped foster awareness of the relationship

between anti-Asian racism, hate crimes, and criminal justice.

241

Or it may create

movements like MeToo, wherein victims can seek more systemic justice

reforms.

Social media may also provide a forum for discussing criminal justice

reform and deeper rationales for punishment. For example, both qualified

immunity doctrine and hate crime legislation have been mooted in online public

discourse.

242

As another example, in the wake of the Derek Chauvin sentencing,

some argued on Twitter that he deserved forty years

243

or a life sentence.

244

But

others, such as prominent New York Times journalist and professor Nikole

Hannah-Jones, argued that the sentence was enough, stating, “very few people

deserve to die in prison, and we must hold consistent beliefs even when the crime

is the most egregious and appalling.”

245

But social media will always function more quickly than the slower

mechanisms of criminal law enforcement. In that regard, social media must

239

. See generally, e.g., Brandon Garrett & Seth Stoughton, A Tactical Fourth Amendment, 103 VA. L.

REV. 211 (2017); Steven Arrigg Koh, Policing & The Problem of Physical Restraint, 64 B.C. L. REV.

(forthcoming 2023); MARTHA NUSSBAUM, CITADELS OF PRIDE (2022).

240

. See, e.g., Maura Hohman, What Is #ShareTheMicNow? Stars Share Trade Social Media Accounts with

Black Activists for the Day, TODAY (June 10, 2020, 1:15 PM), https://www.today.com/tmrw/what-share-mic-

now-june-10-t183880 (describing Share the Mic Now, an initiative wherein black women used the Instagram

handles of white women on June 10, 2020).

241

. Monica Hesse, ‘It’s Race, Class and Gender Together’: Why the Atlanta Killings Aren’t Just About

One Thing, WASH. POST (Mar. 18, 2021, 10:03 PM), https://www.washingtonpost.com/lifestyle/style/hesse-

atlanta-asian-women/2021/03/18/183b3f00-8749-11eb-8a8b-5cf82c3dffe4_story.html (noting that the shooter

chose locations where he could target lower-wage Asian women, suggesting he targeted people who fell into a

specific group when he could have stopped at many other adult businesses, had this really been solely about sex

addiction).

242

. See, e.g., Madeleine Carlisle, The Debate over Qualified Immunity Is at the Heart of Police Reform,

TIME (June 3, 2021, 6:35 PM), https://time.com/6061624/what-is-qualified-immunity/; Beatrice Jin, Biden

Signed a New Hate Crimes Law—but There’s a Big Flaw, POLITICO (May 20, 2021, 12:43 PM), https://www

.politico.com/interactives/2021/state-hate-crime-laws/.

243

. George Takei (@GeorgeTakei), TWITTER (June 25, 2021, 3:31 PM), https://twitter.com/GeorgeTakei

/status/1408508178627760130 (“I want 40 years for Chauvin. George Floyd’s family already got a life sentence

handed to them when Chauvin murdered him.”); Bishop Talbert Swan (@TalbertSwan), TWITTER (June 26,

2021, 11:39 AM), https://twitter.com/TalbertSwan/status/1408812068158029825 (citing the case of Kelontre

Barefield who was sentenced thirty-four years for killing a police dog in the following tweet: “If #GeorgeFloyd

was a DOG instead of a BLACK MAN, #DerekChauvin would’ve received the maximum 40 years”).

244

. Ahmed Ali (@MrAhmednurAli), TWITTER (June 25, 2021, 4:06 PM), https://twitter.com/MrAhmednur

Ali/status/1408516904487170054 (“Derek Chauvin deserved a life-sentence.”).

245

. Nikole Hannah-Jones (@nhannahjones), TWITTER (June 25, 2021, 4:31 PM), https://twitter.com

/nhannahjones/status/1408523204780507143.

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116 HASTINGS LAW JOURNAL [Vol. 74:79

become an instrumentality to promote more equitable and democratically

oriented criminal law enforcement. Consider how this has evolved in recent

years. After the Boston Marathon bombing in 2013, federal law enforcement

established a precedent in Boston’s Logan airport by asking all departing

passengers to share any photos or videos of the incident before leaving

Massachusetts.

246

Following the January 2021 Capitol riots, the FBI created a

website specifically to receive digital media identifying rioters. The FBI shared

this information through public news conferences and tweets, both informing

people of the ways to upload information and sharing pictures

asking for more information.

247

Such media has been integral to the January 6th

prosecutions, and is ongoing.

248

At its best, a better reporting function in a more

democratically oriented criminal justice system threads the needle with the

evidentiary issues identified above. Social media first casts a broad net, wherein

a diverse array of information may be introduced and publicly mooted;

professional criminal investigators then may focus on the relevant and probative

evidence that can clear the high bar of evidentiary rules.

249

C. DEEP STRUCTURAL REFORMS IN AN ERA OF MASS INCARCERATION

But most fundamentally, the deeper reform is to transcend our national

retributive impulse of aggressive punitiveness and condemnation.

250

At its core,

cancel culture reflects and may exacerbate a contemporary American tendency

to punish and shame people as permanently and immutably immoral. Just as the

criminal record is “considered one of the most important markers of

character” in our large, anonymous American society,

251

today the public record

of individuals on social media constitutes another such permanent marker. To

some degree, the virality and incentives of social media may lead individuals

246

. Boston Marathon Eyewitness Gives FBI Photo of Man Fleeing Scene, ABC NEWS (Apr. 17, 2013),

https://abcnews.go.com/blogs/headlines/2013/04/boston-marathon-eyewitness-gives-fbi-photo-of-man-fleeing-

scene.

247

. Amanda Macias, FBI Requests Help from Public To Identify U.S. Capitol Rioters, CNBC (Jan. 7, 2021,

11:46 AM), https://www.cnbc.com/2021/01/07/fbi-asks-public-to-identify-individuals-that-took-part-in-riots-at

-the-capitol.html.

248

. Ten Months Since the Jan. 6 Attack on the Capitol, U.S. DEP’T OF JUST. (Nov. 9, 2021), https://www

.justice.gov/usao-dc/ten-months-jan-6-attack-capitol (“Citizens from around the country have provided

invaluable assistance in identifying individuals in connection with the Jan. 6 attack. The FBI continues to seek

the public’s help in identifying more than 350 individuals believed to have committed violent acts on the Capitol

grounds, including over 250 who assaulted police officers.”).

249

. There is, of course, considerable risk in the opposite direction: at its worst, social media may exacerbate

the breadth and scope of contemporary criminal justice.

250

. MARTHA MINOW, WHEN SHOULD LAW FORGIVE? 146–47 (2019) (discussing the need for forgiveness

while preserving the rule of law); PFAFF, supra note 175, at 212 (“The ultimate solution . . . is significant culture

change: a move away from insisting that the costs of crime consistently trump any costs associated with

enforcement, and away from an assumption that all crimes require a punitive response.”).

251

. See JACOBS, supra note 26, at 4.

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 117

to be more punitive online.

252

President Obama, sensing this shift, spoke out

against it in 2019:

I do get a sense sometimes now among certain young people, and this is

accelerated by social media, there is this sense sometimes of: “The way of me

making change is to be as judgmental as possible about other people, and

that’s enough.” Like, if I tweet or hashtag about how you didn’t do something

right or used the wrong verb, then I can sit back and feel pretty good about

myself, cause, “Man, you see how woke I was, I called you out.”

253

In other words, this social media “call out” may be limited to online spaces,

without triggering genuine cultural transformation. Since the onset of COVID-

19, social media use has increased while human interaction has decreased.

254

a result, there is a growing tendency to view other human beings as we would

social media accounts—individuals who can be blocked, unfollowed, or harshly

condemned without consequences. To achieve true awareness of, and

engagement with, one another—as opposed to performativity or endless

retribution—we need to resist the increasing degree to which we as individuals

feel abstracted from one another.

The central framing question is thus one that echoes in contemporary

criminal law literature: how can cancel culture move from being disintegrative

to being reintegrative? One strand of retribution is disintegrative shaming,

focused on “labeling deviance,” wherein a person is branded with stigma and

little effort is ever after paid to “de-labeling” the individual.

255

Historically,

tattoos, brands, and signs marked and permanently displayed a person’s

deviant identity to the public.

256

As Martha Nussbaum has noted, shaming

implicates human dignity, because it may humiliate and degrade the whole

person.

257

Shame punishments express that “you are a defective type of person”:

when public individuals laugh at a convict in the pillory, they focus on the

person’s spoiled identity, not on their particular act.

258

Otherwise, we may be

252

. The dominant framework by which this Article has evaluated cancel culture considers social media as

a modality channeling public shame. But to what degree is the modality itself contributing to such shame? While

it is too soon to tell precisely, revelations in late 2021 have suggested that social media is not merely an empty

channel: the modality itself has tended toward provocation of outrage and polarization. In particular, the recent

Facebook “whistleblower” revelations from Frances Haugen, who testified before Congress in October 2021,

has shown social media companies’ awareness of the deleterious impact of their platforms toward outrage and

shaming, and on the mental health of young women in particular. Dan Milmo, Frances Haugen: ‘I Never Wanted

To Be a Whistleblower. But Lives Were in Danger’, THE GUARDIAN (Oct. 23, 2021, 9:02 PM), https://www.the

guardian.com/technology/2021/oct/24/frances-haugen-i-never-wanted-to-be-a-whistleblower-but-lives-were-in

-danger. Future research must investigate the cumulative impact of this modality on the proliferation of shame.

253

. Emily S. Rueb & Derrick Bryson Taylor, Obama on Call-Out Culture: ‘That’s Not Activism’, N.Y.

TIMES (Aug. 10, 2020), https://www.nytimes.com/2019/10/31/us/politics/obama-woke-cancel-culture.html.

254

. Ella Koeze & Nathaniel Popper, The Virus Changed the Way We Internet, N.Y. TIMES (Apr. 7, 2020),

https://www.nytimes.com/interactive/2020/04/07/technology/coronavirus-internet-use.html.

255

. BRAITHWAITE, supra note 47, at 55.

256

. Id. at 230.

257

. NUSSBAUM, supra note 43, at 230.

258

. Id.

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118 HASTINGS LAW JOURNAL [Vol. 74:79

permanently caught in a divisive dynamic of perpetuating ranks and hierarchies,

whereby one category of people is labeled as deviant, whereas the others set

themselves up as “normal.”

259

The better approach is reintegrative shaming, which focuses not on

cancel culture’s permanent stigmatization of offenders, but

on fostering subsequent community reacceptance.

260

This approach emphasizes

that an offender’s shame and repentance are preferable to stigmatization in the

face of “one-sided moralizing,”

261

which may create a “class of outcasts” by

stigmatizing and thus dividing the community.

262

But reintegrative shaming may

foster interconnectedness and—if handled well—create a space for

a more enduring subsequent relationship.

263

Framing wrongdoing as wrongful

conduct—not as signifying an offender’s deeper, immutable trait—can thus

resemble the aforementioned European form of punishment rather than the

recent American punitive history leading to mass incarceration.

264

For example,

one thread of potential interest is the promotion of “call-in culture,” which

emphasizes private, respectful conversations about what the person said or did,

and how it is wrong and affected someone. This is preferable to calling the

person out publicly, embarrassing them, and shaming them for their behavior.

265

For those individuals who have been called out, over social media or

otherwise, we must create a cultural space for reintegration. Currently, there is

no clear way for individuals who have violated certain social norms to show

sincere repentance and achieve reintegration into society—ask the typical social

media user, and they will articulate in tremendous detail how and why certain

individuals have been canceled. And yet they will have little recall about how

individuals have been reintegrated after that time. Restorative justice begins not

with retributivist questions of the perpetrator, broken laws, or desert, but instead

focuses on the victims: who has been hurt, what their needs are, and who is

obligated to meet such needs.

266

And while restorative justice, like retributive

justice, aims to “even the score,” it does so not through deprivation of liberty but

259

. Id. at 232.

260

. BRAITHWAITE, supra note 47, at 55; NUSSBAUM, supra note 43, at 240 (“He favors punishments that

focus on the act rather than the person, and that ask the person to make atonement for an act, as a prelude to

being forgiven and reintegrated into the community.”).

261

. BRAITHWAITE, supra note 47, at 81.

262

. Id. at 55.

263

. Id. at 73.

264

. Kleinfeld, supra note 29, at 944.

265

. Jessica Bennett, What If Instead of Calling People Out, We Called Them In?, N.Y. TIMES (Feb. 24,

2021), https://www.nytimes.com/2020/11/19/style/loretta-ross-smith-college-cancel-culture.html.

266

. Mark S. Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in the

Twenty-First Century: A Social Movement Full of Opportunities and Pitfalls, 89 MARQ. L. REV. 2, 258 (2006);

Green & Bazelon, supra note 28, at 2300 (“One of the principal advantages of restorative justice is that, when

victims voluntarily choose it, it better serves victims’ interests by respecting their agency, allowing them to avoid

the burdens of the adjudicative process, and, most importantly, offering them a resolution that they believe will

better serve their interests than criminal punishment of the offender.”).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 119

by encouraging offenders to take responsibility, right their wrongs, and address

the causes of their behavior.

267

Some legal spaces have emphasized restorative justice and the fostering of

sincere regret. For example, international criminal law has continuously mooted

the possibility of truth and reconciliation commissions over

adversarial prosecutions.

268

And in the early days of the Obama Administration,

some pushed for a truth and reconciliation commission to remediate Bush-era

human-rights abuses, hoping that it would foster a genuine

sense of accountability, contrition, and restoration.

269

Mindful of this history,

one promising avenue for reintegration could be to create online restorative

spaces.

270

For example, one option mooted in the New York Times is to modify

online content moderation in the form of a restorative justice mediation circle,

helping users who post harmful content to learn and change.

271

Researchers at

the University of Michigan, for example, hosted a chat between members of the

LGBTQ community and certain members of the r/Christianity subReddit who

had been banned over anti-LGBTQ postings. Results were mixed, though at least

one user was readmitted to the subReddit after expressing contrition. Notably,

the user stated to the New York Times reporter: “It’s the element of shame. I’m

somebody who feels guilt being confronted and it allowed me to see I was

the one at fault.”

272

But the Times also rightfully noted a classic critique of

restorative justice: it is difficult to imagine the number of resources necessary to

bring together offenders and the offended in a meaningful way at a large scale.

273

Furthermore, we must find some limit to our desire to permanently

ostracize individuals who have engaged in perceived wrongdoing. In criminal

267

. Umbreit et al., supra note 266, at 257.

268

. See Desmond Tutu, Truth and Reconciliation Commission, South Africa, ENCYC. BRIT. (Feb. 4, 2019),

https://www.britannica.com/topic/Truth-and-Reconciliation-Commission-South-Africa.

269

. Philip Rucker, Leahy Proposes Panel To Investigate Bush Era, WASH. POST (Feb. 10, 2009),

https://www.washingtonpost.com/wp-dyn/content/article/2009/02/09/AR2009020903221.html.

270

. See generally OFF. OF JUST. PROGRAMS, EFFECTIVENESS OF RESTORATIVE JUSTICE PROGRAMS (2017),

https://www.ojp.gov/pdffiles1/ojjdp/grants/250995.pdf. Restorative justice is not the only anti-shaming reform

to resemble criminal justice. For example, the online gaming community has experimented with a system to

adjudicate individuals who have violated gaming rules, in addition to other structural components such as “opt-

in” versus “opt-out” functionality and removing abusers with public justification. See Laura Hudson, Curbing

Online Abuse Isn’t Impossible. Here’s Where We Start, WIRED (May 15, 2014, 6:30 AM), https://www

.wired.com/2014/05/fighting-online-harassment/. Additionally, more in the direction of permanent “branding”

is a reputation system on Microsoft Live, which publicly displays the status of your account. It will display a red

“avoid me” label for users who routinely receive negative feedback. According to the description in the link

below, as you move down in reputation rankings, you are more likely to be assigned to games with others who

share your reputation level, thus isolating the harmful behavior. Enforcement, MICROSOFT, https://enforcement

.xbox.com/en-us/home/reputation (last visited Dec. 5, 2022).

271

. Charlie Warzel, Could Restorative Justice Fix the Internet?, N.Y. TIMES: OP. (Aug. 20, 2019), https://

www.nytimes.com/2019/08/20/opinion/internet-harassment-restorative-justice.html.

272

. Id.

273

. Compare id. (“Most daunting is the issue of scale. There’s simply no way to replicate the amount of

time and effort involved with Ms. Blackwell and Mr. Loewinger’s experiment across the web.”), with Lanni,

supra note 16, at 639 (“Ensuring equal access to restorative justice may require large-scale implementation of

restorative justice programs that may compromise quality and attention to local community concerns.”).

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120 HASTINGS LAW JOURNAL [Vol. 74:79

justice, the most important predictor of rehabilitation is legitimate

employment, while an indelible criminal record obstructs such employment.

274

As noted above, America currently functions on a framework of permanent

moral condemnation, wherein criminal records are used to permanently

categorize and stigmatize people.

275

This is particularly the case today, where

criminal records are electronically stored and the criminal background check is

“a routine feature of American life.”

276

Just as a public, permanent criminal

record undermines rehabilitation,

277

so too might a permanent social media

account of an individual’s wrongdoing. We need to move to a place where an

individual is sanctioned but does not suffer collateral consequences after the fact,

whether incarceration or public shaming. For example, a recent editorial by

Michael Eric Dyson has similarly argued that the better sanction for Amy

Cooper, the white woman who called the police on Central Park birdwatcher

Christian Cooper, would have been education instead of firing.

278

To be clear, I am not advancing a granular, substantive standard of

proportionality for certain offenses, nor am I arguing for absolving all

wrongdoing. When it comes to individuals who have engaged in particularly

heinous conduct—including racist and sexist conduct, for example—serious

consequences should ensue. My point is to begin the conversation of what

proportionality should be, especially for individuals who have not engaged in

particularly flagrant conduct. Such discussion rarely exists; instead, the default

position is often a maximalist one, calling on individuals to be banished for

conduct that almost certainly does not warrant it, or alternatively decrying online

accountability as “mob rule.” A better approach must balance accountability

with reintegration.

CONCLUSION

Cancel culture and criminal justice are interrelated normative systems in

modern society. In one regard, cancel culture represents a new modality of

collective condemnation and may often rectify deficiencies of over- and under-

enforcement in our criminal justice system. However, the downsides of cancel

culture—disproportionate sanctions leading to collateral consequences, a “thin”

274

. JACOBS, supra note 26, at xii; id. at 2 (“The criminal record is a kind of negative curriculum vitae or

résumé.”).

275

. See id. at 4 (“[C]riminal records today are widely used to assess, sort, and categorize people in such

diverse contexts as immigration, employment, housing, university admissions, voting, possessing firearms,

serving on a jury, and qualifying for social welfare benefits.”).

276

. Id. at 5.

277

. Id. at 223 (“Rehabilitation is clearly incompatible with publicly accessible criminal records.”).

278

. Michael Eric Dyson, Where Is the Forgiveness and Grace in Cancel Culture?, N.Y. TIMES (Dec. 28,

2021), https://www.nytimes.com/2021/12/28/opinion/desmond-tutu-america-justice.html (“Although she

received some form of restorative justice, an even better approach would have been her keeping her job while

her employer demanded that she read and study more about race, Black masculinity, white privilege and social

injustice. The loss of her job as an act of retributive justice left all these structural issues aside and merely shamed

her without transforming her or using her circumstances to throw light on similar cases.”).

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December 2022] “CANCEL CULTURE” AND CRIMINAL JUSTICE 121

conception of the wrongdoer as beyond rehabilitation, and broader cultural

anxiety that “chills” certain human conduct—ultimately reveal it to be a

reflection of deeper U.S. punitive impulses. While social media reforms may

mitigate cancel culture’s excesses, the more fundamental change in law and

society must focus on the values of restoration and reintegration.

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122 HASTINGS LAW JOURNAL [Vol. 74:79

* * *

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