Subject: [EL] Anonymity, accountability, and blacklists
From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
Date: 4/6/2011, 9:21 AM
To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

	I'm curious what people think about the propriety (or impropriety) of government action that makes it easier to hold people "accountable" for their expression, in light of the historical example of blacklisting of Communists and Communist sympathizers.  I have heard many people argue that such blacklisting was unethical when done by purely private organizations, and that the government should not have facilitated such blacklisting by trying to expose secret Communists and Communist sympathizers (see, e.g., the Barenblatt case).  On the other hand, I've also heard others argue that it was quite proper for private organizations to refuse to do business with those whose speech they found to be evil and repugnant, and quite proper for such organizations to take into account public disapproval of those people.  Likewise, in the recent era I've heard arguments that it's unethical for people to refuse to do business with (say) supporters of anti-gay-marriage initiatives, and that !
 the government shouldn't facilitate such boycotts and blacklisting.  On the other hand, I've also heard others argue that it's quite proper for people and organizations to refuse to do business with those whose First-Amendment-protected support of an initiative they find to be evil and repugnant, and quite proper for business organizations to take into account customer disapproval of those people; and that there's no problem with the government's facilitating this by releasing the names of such contributors.

	I realize, of course, that blacklists were more pervasive than the hostility towards gay rights supporters -- but I take it that what one person or organization may do (refuse to do business with people whose speech they find repugnant), other persons and organizations may do as well.

	I should note that none of this goes to worries about fear of "harassment" (a vague term that I think is best avoided, unless its specific meaning is given) in the sense of fear of government selective prosecution, firing or refusal to hire by government employers, or violent attacks -- or, on the other end of the spectrum, fear of loss of friends, tension within families, and so on.  Here I'm speaking only of economic retaliation, and the fear of economic retaliation.

	Eugene

-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of Sean Parnell
Sent: Wednesday, April 06, 2011 8:14 AM
To: 'Paul Lehto'; jon.roland@constitution.org
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Anonymity and harassment

What, exactly, does it mean to hold speakers "accountable," and what is the
government's proper role in helping to hold people "accountable" for their
speech? I was under the impression that the First Amendment meant, in
fact,
that government wouldn't be holding people "accountable" for their free
speech (i.e. punishing them for voicing the "wrong" opinions).

Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA  22310
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax

-----Original Message-----
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Paul Lehto
Sent: Tuesday, April 05, 2011 5:47 PM
To: jon.roland@constitution.org
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Anonymity and harassment

One real problem with the anonymity/harassment debate is the fairly
low standard of "harassment" that gets regularly applied by many.
Oftentimes, accountability and "harassment" feel very much the same -
to a person being held accountable.  (This of course does not cover
the more extreme examples of harassment.)

Under such relatively low standards, criminal defense attorneys,
prosecutors, as well as judges are certainly both subjected to and in
reasonable apprehension of "harassment."  One could add jurors in some
cases as well.  At least the attorneys, prosecutors and judges would
all have the constitutional first amendment right to wear hoods
covering their faces and to conceal their names, on grounds of actual
and potential "harassment."

The above is the main reason why, in my mind, the concept of "civic
courage" must be given a a relatively heavy counterweight to whatever
realities of harassment exist.

Paul Lehto, J.D.

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