[EL] Boycotts of contributors to federal candidates, and 42 USC sec. 1985

Tue Apr 10 09:28:30 PDT 2012

                The Civil Rights Act of 1871, 42 USC 1985, makes it civilly actionable - and also a federal crime - "to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy."  Haddle v. Garrison, 525 U.S. 121 (1998), which interpreted a closely analogous portion of the same statute, held that "injur[ing] any citizen in person or property" simply meant "committed a tort towards that citizen," and that the tort of interference with business relations (including employment relations) qualified.

                Would it follow that concerted economic actions aimed at getting people to cancel contracts with an individual donor to a federal candidate violate sec. 1985?  Would they be protected notwithstanding sec. 1985 under NAACP v. Claiborne Hardware (1982), or is Claiborne limited to speech organizing a boycott, so that actual economic actions in support of a boycott are not covered?

A bit more detail about the section 1985 argument.  Section 1985 prohibits five different forms of conspiracies:

 1.  "to prevent, by force, intimidation, or threat, any person from accepting or holding [or exercising] any office ... under the United States," or "to injure him in his person or property on account of his lawful discharge of the duties of his office";
 2.  "to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, ... or to injure such party or witness in his person or property on account of his having so attended or testified" (this is the provision involved in Haddle);
 3.  "[to] imped[e], hinder[], obstruct[], or defeat[] ... the due course of justice in any State ..., with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws";
 4.  "[to] depriv[e], either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws"; or
 5.  "to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy."

All these provisions apply to private actors and not just to government officials. But, as the Court recognized in Kush v. Rutledge, these five kinds of conspiracy belong to two families. Provisions (c) and (d) "contain[] language requiring that the conspirators' actions be motivated by an intent to deprive their victims of the equal protection of the laws," and at the same time deal with activity that "is not institutionally linked to federal interests and ... is usually of primary state concern." Because of this, the Court did not want the provisions to be read as "creat[ing] an open-ended federal tort law applicable 'to all tortious, conspiratorial interferences with the rights of others,'" and therefore required a showing of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action."[7]
On the other hand, provisions (a), (b), and (e) do not mention "equal protection," and do not require either state action or a class-based animus. These provisions "relate to institutions and processes of the Federal Government - federal officers, [(a)]; federal judicial proceedings, [(b)]; and federal elections, [(e)]. The statutory provisions dealing with these categories of conspiratorial activity contain no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws."  In Kush, the Court therefore expressly held that § 1985 therefore provides a cause of action for "an alleged conspiracy to intimidate potential witnesses in a federal lawsuit," a provision (b) claim, without any state action or class-based animus.  And the Court's reasoning applies as much to provision (e) claims, which involve retaliation for supporting a federal candidate, as it does to provision (b) claims, which involve retaliation for being a witness in a federal case.

                Eugene

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, April 10, 2012 9:15 AM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] ALEC Boycott

These are all excellent questions, and I'd recommend Economic Boycotts as Harassment: The Threat to First Amendment Protected Speech in the Aftermath of Doe v. Reed<http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2776&context=llr>

On 4/10/2012 8:57 AM, Smith, Brad wrote:

"While I've heard some conservatives saying that political activism from liberals to get groups to not support ALEC is intimidation, it looks to me like protected First Amendment boycott-like activity<http://electionlawblog.org/?p=31462>."

Of course, it can be both. One question we are going to have to ask ourselves is whether we want the meanness of the society that is shaping up. While boycotts have some honorable history and can be a useful tool, nobody really much wants to live in a boycott world. Labor law has long prohibited secondary boycotts, largely for that reason.

We'll also have to address more honestly whether the government has a compelling interest in forcing people to disclose activity that may subject them to boycotts and other forms of harassment. Notice that those boycotting and organizing boycotts are not required to disclose themselves, neither their identity nor their sources of financing.

Justice Scalia has voiced concern that a world without compulsory disclosure would be particularly nasty. I think he's got it backwards - compulsory disclosure, supported primarily because it enables opponents of speech to engage in boycotts and other harassment, is creating an increasing nasty political environment.

One can certainly see something as protected First Amendment activity while recognizing it as intimidation as well. And that raises the question as to what interest the government has in enabling intimidation.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp
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