This week’s spectacle involving the cancellation of actress, Gina Carano, is just another dizzying trip down the rabbit hole and a new affront on common sense. For those of us over a certain age, we grew up in a world where a person made a point, took a stand, or voiced an opinion; they were respected, even admired. Today, anyone who does not abide by the #woke dogma of the dominant culture immediately can be canceled –even famous and beautiful movie stars such as Gina Carano.
Ms. Carano, who is well known for articulate conservative social media posts, made the following post on or about February 9, 2021:
“Jews were beaten in the streets, not by Nazi soldiers but by their neighbors… even by children.
Because history is edited, most people don’t realize that to get to the point where Nazi soldiers could easily roundup thousands of Jews, the government first made their neighbors hate them simply for being Jews. How is that any different for simply hating someone because of their political views?”
This post’s gist is that to hate a person based upon religious affiliation is little different from the hate a person based upon political views. (Trust me, I know this because some of my family members have openly expressed a deep hatred for me because I am a Republican). To hate a person for being a Republican is no different from hating a person for being a Jew. Both Jews and Republicans have sets of beliefs, but on the exterior appear no different than anyone else. To put this another way, to hate someone for being a Jew or a Republican is not to hate them for their skin color, but to hate them for their beliefs.
In retaliation for making a truthful statement on social media, Ms. Carano’s employer, Lucasfilm, Ltd., terminated her employment on the Mandalorian television series and issued a public statement that read in part:
“Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable.”
The problem with this statement is that no reasonable interpretation of what Ms. Carano said could conclude that she denigrated anyone based upon cultural or religious identity—unless you are a Nazi.
Two legal issues immediately present themselves:
(1) if her contract permits Lucasfilm to terminate her for cause, does her truthful statement amount to cause; and (2) is Lucasfilm’s statement defamatory? Let’s consider these two issues.
First, I do not think making a truthful statement on social media can constitute “cause” under any contract unless the contract specifically addresses social media commentary. Such an agreement might state that a person who makes a comment on social media that harms her employer can be terminated. The complexity here is that there is no reason why a truthful statement would have a negative impact on an employer.
(Remember how I said things were when I was in high school).
Only in a society dominated by cancel culture is it possible that the truth can be interpreted negatively. This means that there are certain circumstances where one cannot speak the truth. All contracts have an implied duty of good faith and fair dealing regarding performance of the terms of the contract. That means if you agree to do A, then you must exercise good faith when performing your contractual duty. Again, it is illogical to suggest that making a statement of fact would somehow violate Ms. Carano’s duties of good faith under her agreement. So, I suspect she has a good breach of contract claim against Lucasfilm. (I would need to read her contract to be sure).
As for defamation, clearly what Lucasfilm said was defamatory. The Lucasfilm statement is absolutely false because nothing that Ms. Carano said can reasonably be construed to denigrate anyone based upon their cultural and religious identities. Instead, what Ms. Carano did is compare canceled culture to what occurred in Germany in the 1930s. What happened there is that over time, society was trained to hate the Jews.
Today, with the nonstop attacks on conservatives and Republicans, people, like members of my own family, are being trained to hate others based only upon their political ideology.
The real reason behind the Carano #cancellation is an effort by the Left to frighten people into submission. The Left wants to scare people so badly that no one will comment on anything for fear of what will happen. This means that the First Amendment will no longer have the powerful and positive force it historically has had. Instead of people standing up for their views and debating other’s opinions, we confront a culture where only one opinion, ever-changing, is allowed.
Todd McMurtry is a nationally known attorney. His practice focuses on defamation, social media law, professional malpractice, and business disputes. You can follow him on Twitter, GAB and Parler (hopefully again soon!): @ToddMcMurtry.