Can I Sue Someone for Getting Me Canceled?
Yes, you may be able to sue someone for getting you canceled, at least under certain definitions of the term "canceled." Although there is no currently recognized legal claim (tort) for cancellation, you may be able to bring civil claims under specific legal theories, such as defamation, tortious interference with contractual or economic relationships, or infliction of emotional distress. You also may be able to persuade a judge to recognize a new, independent tort of cancellation.
Winning a cancellation case will not be easy. The underlying theory of recovery is novel and implicates freedom of speech, so you stand a better chance of prevailing if you can assert a defamation or tortious interference claim.
Important: If you believe you have been canceled, you should strongly consider seeking legal advice from an experienced and creative personal injury attorney in your area. They will be able to give you a better sense of whether the courts in your state would be receptive to a cancellation suit and help you understand what your best options are before you bring legal action.
What Is Cancel Culture?
“Cancel culture" describes the increased inclination of our society to isolate individuals who say or do objectionable things, such as sexual harassment or demonstrate racial bias.
Cancellation campaigns typically, but not always, begin on social media platforms and follow a predictable pattern. A person identifies something offensive that their target did, either recently or in the past, makes it public, and then calls for their followers and others to boycott the target socially and economically. The boycott spreads as the post is shared and reshared. If the boycotting campaign is successful (or trends on social media), the target will be at the very least publicly shamed and may even lose their job or other economic opportunities.
Some see cancel culture as a good thing. Cancel culture can hold someone to account for bad (often racist, sexist, homophobic, or transphobic) behavior. Making a complaint public forces the target's employers, customers, and others to distance themselves from the target, which balances any perceived power gap between those with large audiences and the people or communities that could be hurt by their bad conduct.
On the other hand, some people see cancel culture as a bad thing. For them, public shaming reflects a destructive, unforgiving mob mentality that seeks to censor and punish those who disagree with progressive ideals. They find it particularly unfair to targets who are punished for things they said or did years before (for example, when the target was in high school). Cancel culture is essentially the modern equivalent of economic and social banishment.
The #MeToo Movement and Cancel Culture
The #MeToo movement, which was founded in 2006 by Tarana Burke to support victims of sexual violence, grew out of the current cancel culture. In October 2017, the #MeToo hashtag went viral as several women came forward alleging criminal sexual misconduct by Hollywood mogul Harvey Weinstein. Numerous other cases followed.
According to the New York Times, the #MeToo movement can be credited for canceling as many as 201 powerful men, including:
- Comedian Louis C.K.
- Senator Al Franken
- Television news anchor Matt Laurer.
- Missouri Governor Eric Greitens
- U.S. Rep. John Conyers, Jr.
Other Famous Cancellations
The #MeToo cancellations for sexual harassment haven't been the only ones to gain media attention. Other celebrities have been canceled for perceived objectionable behavior.
For example, actress Gina Carano was dropped by Disney from its popular show, The Mandalorian, because of her conservative tweets. Michael J. Lindell (better known as the My Pillow guy) was dropped by his bank because of his vocal support of President Trump. Rosanne Barr's show was canceled by ABC because of a racist tweet. The list goes on and on.
Not every cancellation is professionally fatal, however. For example, the actress Amber Heard alleged that she had been abused by actor Johnny Depp, her ex-husband, in a piece that was published by the Washington Post. Depp was dropped by Disney from a “Pirates of the Caribbean" sequel and replaced as the wizard Gellert Grindelwald in the “Fantastic Beasts" movie franchise.
Depp decided to fight back. He brought a defamation lawsuit against Heard, claiming that she had lied about the abuse and that she had abused him. After a highly publicized trial, a jury sided largely with Depp and awarded him a multi-million-dollar verdict. Depp has since signed a multiyear deal with Dior, and there are reports that he may be in talks with Disney.
What Can You Do If Someone Tries to Cancel You?
If someone tries to cancel you, you have at least four options. You can deny the accusations and argue your case in public. You can apologize for your conduct and pray that your business and social reputations will weather the storm. A third option (if it involves something you said) is to double down and not apologize, trusting that your supporters will see things your way. Finally, you can ignore it, cross your fingers, and hope for the best. In any case, it's a wait-and-see approach.
There is a fifth option you could consider. Fight back. Like Johnny Depp, you could take your canceler to court.
A Litigation Roadmap: Gibson's Bakery v. Oberlin College
That's precisely what Gibson's Bakery did. Gibson's Bakery is a fifth-generation, family-owned bakery near Oberlin College in Oberlin, Ohio. It supplied goods for many of the college's events and was popular among the students and residents of Oberlin.
Shoplifting and Assault
In November 2016, an underaged student attempted to shoplift wine from Gibson's. The store clerk rejected the student's fake ID and tried to take his picture on his phone, threatening to call the police. The student slapped the phone away, striking the clerk in the face, and ran out of the store. The clerk gave chase and held the student outside the store. A scuffle ensued, joined by two of the student's friends. The store clerk sustained minor injuries.
When the police arrived, they arrested the student and his friends and charged them with assault (and the student with robbery as well). The three eventually pled guilty, affirming in court that the clerk's conduct was not racially motivated (the student and his friends were Black).
In the meantime, students, faculty members, and administrators of Oberlin College protested the bakery, claiming racism. The college actively supported the protesters and cut off business with the bakery. The bakery was nearly driven to bankruptcy.
After enduring the protests and the boycott for a year, Gibson's sued Oberlin for, among other things, libel, slander, tortious interference with business relationships, and tortious interference with contracts (more on these claims below). While the college contended that they had a First Amendment right to protest, the evidence showed that its claims of racism against Gibson's Bakery were baseless.
A jury returned a verdict in favor of the bakery and against the college, awarding $11 million in compensatory damages and $33 million in punitive damages. Although it reduced the award to $25 million pursuant to state law, the court ordered Oberlin College to pay an additional $6.5 million to the Gibson family for litigation expenses and attorneys' fees.
If someone is trying to cancel you, you too may be able to file a lawsuit and assert at least three possible claims:
- Defamation (libel or slander)
- Tortious interference with contract/business relationships
- Intentional infliction of emotional distress
Defamation is a false factual statement that damages your reputation. If it's spoken, it's slander. If it's written, it's libel. To sue someone for defamatory statements, you need to prove the following elements:
- The person canceling you made a statement of fact
- The statement was published (communicated to a third person)
- The statement was false (in some states, truth is a defense the canceler needs to prove)
- The statement was not privileged (in some states, privilege is also a defense the canceler would need to prove)
- The false statement harmed your reputation
- If you are a public figure, you also have to prove that the person knew the statement was false and made it anyway (actual malice)
If you as the plaintiff can meet your proof in your defamation lawsuit, you are entitled to compensatory damages (that is, money to compensate you for the harm done, such as lost wages if you get fired). If the person who tried to cancel you acted outrageously, you may be able to recover punitive damages (damages intended to punish a wrongdoer).
The person who tries to cancel you may be able to assert defenses to your defamation claim:
- Fact v. opinion — You cannot sue someone for expressing an opinion, and it's not always clear whether a statement is one of fact or an opinion. For example, calling someone a racist, depending on the context, could be considered either. The line between them is blurry.
- Qualified privilege — If the statement is privileged, you can say it even though it's false. For example, if you are warning someone of danger, you cannot be liable for defamation because your statement is privileged.
Tortious Interference With Contract/Business Relationships
The law protects contracts, business relationships, and business opportunities. If someone breaks a contract with you or refuses to do business with you because of something your canceler does, you may be able to sue them for tortious interference. To win, you would need to show the following:
- You had a valid contract or economic expectancy with a third party
- The person trying to cancel you knew of the contract or economic expectancy
- Your canceler intended to interfere with the contract or expectancy
- The third party broke your contract or refused to do business with you because of the actions of your canceler
- You suffered financial harm as a result of your canceler's actions
If you can establish these elements, you can recover compensatory damages for the economic losses you suffer and, if your canceler's conduct was extreme and outrageous, punitive damages.
Intentional Infliction of Emotional Distress
A third possible claim you may be able to level against your canceler is the intentional infliction of emotional distress (IIED). To win, you would need to prove the following elements:
- Your canceler's conduct was extreme, outrageous, and exceeded all bounds of common decency
- Your canceler intended to cause you severe emotional distress
- You in fact suffered severe emotional distress (including, in some states, physical harm) as a result of your canceler's conduct
IIED is a hard, but not impossible, claim to win in the cancellation context. Your canceler may be able to argue that calling for a social and economic boycott of you does not exceed the bounds of common decency, depending on what their attempt to cancel you is based on. Further, the emotional distress you suffer must truly be severe, something a reasonable person could not be expected to endure.
But if you can get over these hurdles, you may be able to recover compensatory damages (but probably not punitive damages) for the emotional distress you suffer.
A New Tort?
Don't bet on it, but you may be able to persuade a judge to recognize a new legal claim (called a “tort") for cancellation. Some states, such as Minnesota, have a constitutional provision that gives you a legal remedy for “all injuries or wrongs which [you] may receive to [your] person, property, or character." You could argue that if it doesn't fall within any of the claims identified above, someone's attempt to cancel you constitutes a wrong for which the law provides a remedy.
If Someone Tries to Cancel You, Contact a Lawyer
Cancellation is not just the province of celebrities. Anyone could dig up something from your past and try to persuade other people not to do business with you. In some cases, you may be able to sue them for it.
If someone tries to cancel you, you should consider consulting with an experienced personal injury attorney. They would be able to give you advice within the context of an attorney-client relationship, help you understand your legal rights, and represent you in court if they believe you can bring a legal action.