[EL] ALEC Boycott

[Smith, Brad]

But it is not the speech of the corporations that the boycotters seek to halt - rather, it is the speech of the speaker, in this case ALEC. Thus, more generally, when a boycott is organized of a restaurant and demand that it fire a person who gave money to support a ballot initiative; when a boycott is organized of an arts organization with the demand that it fie a person who gave money to an initiative; when a boycott is organized of donors to an organization, or purchasers of ad time on a program, because the boycotters do not like the speech of the organization receiving the donation or the substantive content of the program, it is most definitely an effort to silence speech, to silence dissenting views. It is not an effort to convince others in the public that the speech is incorrect.

I also think you are wrong on the public goods matter. I understand the context in which you and Eugene used the term. You seem to think that persons could not possible contribute to organizations (and you imply that this goes beyond ALEC) simply because they believe that the organizations do good work or contribute generally to the welfare of society - i.e., because persons recognize their work as public goods which they have an obligation to support even if they do not produce direct, immediate gains, lest they otherwise disappear due to the free rider problem.

A glum view of life, one you might consider realistic but one I consider demonstrably untrue. Many of us have, in fact, built careers around the belief that we supply public goods and that persons will voluntarily spend money to support the provision of those public goods, even when they could attempt to free ride on the efforts of others. Persons and groups of persons routinely support activities and organizations precisely because they recognize that the objects of their support are public goods, and feel either an obligation, or at least a desire, to support those organizations and activities lest they otherwise disappear due to free rider programs. Indeed, why would anyone ever be willing to pay for a public good (in the economic sense) whether through private contributions or supporting taxes to pay for it, if he did not think that doing so was also in the public good (in the political or communal sense)?

In the specific case, while you may feel that ALEC has little influence, that simply sidesteps the question of the costs and benefits of the Boycott Society. Here the boycotters are not seeking to shut off support to ALEC because they see it as a mere access group. Rather, they seek to shut off support of ALEC because they believe ALEC supplies public goods in the form of model legislation, background information and research, and a place where legislators can exchange ideas and gather information - that is, ideas. And they see these ideas as threatening to their own political goals. They recognize that there is little direct gain for the donors - that is why a boycott is effective. Their object is not to meet these ideas on the intellectual playing field, but to make sure that others do not hear them. There is really no doubt that it is about intimidation and attempts to silence opposing views.

Personally, I do not find this healthy at all, even if I do consider it constitutionally protected activity. And it raises questions about another element of these wars (not applicable in the case of ALE; first, as a constitutional matter, whether the government has any interest, let alone a compelling one, in forcing people to disclose information to the public which could subject them to harassment and boycott; and second, as a policy matter, whether we really want to foster that type of political environment and whether we really believe doing so leads to "good government" or, more broadly, healthy debate, a healthy democracy, or the public good.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt [schmitt.mark at gmail.com]
Sent: Thursday, April 12, 2012 12:54 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] ALEC Boycott

I think that Prof. Volokh was using the term "public good" in a totally different sense. He was arguing that because the policy work of ALEC is gnerally available, a controversy-averse corporation can just be a free rider, and expect that the "superb work" remains available.

My response, based not on belief or assumption but what I know of the reality of ALEC, is basically that corporations aren't paying to produce freely available work, the work's not generally available, and that these contributions are basically transactions, for access.

Whether those transactions, or the ideas promoted by ALEC might serve "the public good" in that other sense of the word is a totally different question and not a point I'm arguing here. We've created a wonderfully pluralistic system in the U.S., in which both tax-subsidized and non-subsidized contributions fuel an enormous number of policy and political initiatives, as well as networking and lobbying. We assume that deliberately encouraging such a vibrant marketplace of ideas will ultimately lead to something like the public good. And while that may be a flawed assumption, you're right that many of our careers are entirely built on that assumption.

But one way that individuals without a lot of economic power of their own, or jobs at think tanks, can participate in that marketplace is through selective boycotts of companies that support ideas or organizations they find distasteful. That seems entirely appropriate to me, and hardly intimidation of political speech at all, especially when political speech is a very small part of the reason these contributions are made.


Mark Schmitt
Senior Fellow, The Roosevelt Institute<http://www.newdeal20.org>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9<https://twitter.com/#%21/mschmitt9>

On 4/11/2012 11:12 PM, Smith, Brad wrote:
True, if you believe that the public good can never be harmonious with the good of any of the private individuals who collectively make up the public; or if you subscribe to the dark view that no one is ever really interested in just having good public policy. Of course, sometimes the careers we choose belie that claim.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Mark Schmitt [schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>]
Sent: Wednesday, April 11, 2012 10:31 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] ALEC Boycott

 The problem with that theory is that ALEC isn't a public good. Corporate giving to ALEC is entirely transactional -- companies give because corporate sponsors get X number of seats at the annual conference, and opportunities to weigh in on some of the task forces. If you don't give, you lose that access. No corporation gives to ALEC because it "does good work" in the abstract.

To some extent, in demonizing ALEC, the left has exaggerated what it is. It's just a network for lobbyists connected to a network of legislators.


Mark Schmitt
Senior Fellow, The Roosevelt Institute<http://www.newdeal20.org>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9<https://twitter.com/#%21/mschmitt9>

On 4/11/2012 4:36 PM, Volokh, Eugene wrote:
                It’s possible, but this might also be a classic public goods situation – even if a corporation thinks ALEC is doing superb work, the marginal effect of that corporation’s withdrawal of its contribution is likely to be fairly modest, so that the corporation might stop contributing.

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Schmitt
Sent: Wednesday, April 11, 2012 12:50 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] ALEC Boycott


It's interesting how quickly some of the corporations have abandoned ALEC based on a very small boycott. That suggests to me that the corporations didn't feel they were getting much value from their involvement with ALEC, or not enough to offset the very small cost of a little of bad publicity in a limited community. A boycott effort by colorofchange.org is simply not going to prevent a company from doing something it really wants to do.

Most likely, no one at a particularly high level of the companies had even been involved in the decision to fund ALEC. It was probably a decision made by the company's DC office, as a way of ensuring access to the ALEC member legislators, rather than an act of political speech.

The effect of the boycott, then is to make the corporation notice what its lobbyists are doing and ask whether it makes any sense. That seems like a healthy development.


On 4/10/2012 12:15 PM, Rick Hasen wrote:
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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