Indeed, isn't "economic retaliation" in the form of boycotts itself protected political speech with a long civil rights movement history??
Trevor Potter
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-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH@law.ucla.edu]
Sent: Thursday, April 07, 2011 10:46 AM Eastern Standard Time
To: election-law@mailman.lls.edu
Subject: [EL] The limits of "anti-harassment laws" as means for protecting anonymity
I'm not sure that the purported equivalences of anonymous speech and drive-by shootings, and protections for anonymity and prior restraints are helpful here. But beyond this, I'm also not sure why a "robust explanation of why present anti-harassment laws and the like are sufficient to protect everyone else but not political speakers" is missing. The explanation, I think, has always been clear. First, if the worry is about violent attacks, we know that existing laws against violent attacks are not "sufficient" to deter violent attacks, or to make people feel safe about exercising their liberty when threatened with violent attacks. Laws against mugging don't mean that people feel safe walking in the park at night. Likewise, laws against violent attacks won't mean that people will feel safe saying things that might lead to violent retaliation. The difference is that we can't do that much beyond having laws against mugging to stop the park attacks, so we have to live with!
the deterrence of walking out at night. But we can do something about violent attacks against highly controversial speakers -- we can help them be anonymous.
Second, if the worry is about economic retaliation, the fact that is that present laws in most states don't prohibit even employment discrimination based on political speech. A few states have such laws, but very few. And no laws prohibit other economic retaliation, such as boycotts based on political speech and such. Moreover, such laws will always be highly underenforced, because proving that you were fired because of your political speech is quite hard -- and proving that you weren't hired because of your political speech might we well-nigh impossible. So "present anti-harassment laws and the like" are not remotely sufficient to protect people against economic retaliation for their political speech. The consequence is that precluding anonymous speech will substantially deter -- perhaps massively deter -- controversial statements that people might think will lead them to lose job opportunities.
Again, all this doesn't mean that anonymity must always be protected; maybe the harms outweigh the benefits, either in general or in some cases. But the limitations of "anti-harassment laws" here as means of preventing the deterrence of political speech are clear. That's why anonymity does provide a huge marginal benefit in preventing such deterrence.
Eugene
Paul Lehto writes:
While Kenneth Mayer's point is true and correct as a matter of law, at
this point in this particular debate a First Amendment VALUE of
"anonymity" is being asserted for purposes of enshrining it further as
First Amendment LAW. Because the discussion at this point is about
values and principles and not about present law, examples both having
and not having state action are relevant to the discussion and
understanding of the operation of anonymity as a first amendment
value.
Those examples or analogies outside the context of state action will
have lesser weight (assuming the state action doctrine remains robust
in First Amendment jurisprudence, unlike the 13th amendment and other
parts of the Constitution that do apply directly to the private
sector), but these private sector examples are not irrelevant: They
represent expressions of First amendment VALUES. The example of
newspapers is pertinent since they specially claim to be strong
devotees of both first amendment values as well as First Amendment law
- so newspaper policies of not allowing anonymous letters are
"admissible" to this discussion, and each reader can find the
newspaper "precedent" (on the level of values) either persuasive or
hypocritical, and weight that evidence in the light of the
considerations above, and any other aspects of their individual
judgment.
It certainly appears that newspapers, having to daily review droves of
proposed letters to the editor, have noted distinct patterns in
anonymous letters (as has Bev Harris below in her reviews of blog
posts on her site) in which anonymous letters are much more likely to
be the rhetorical equivalents of harassment and drive-by shootings,
specifically because of the lack of "accountability" to others that
anonymity provides.
Anonymity creates more harassment than it protects from. Thus, it's
strategically critical for pro-anonymity folks to lead with their
somewhat inflated complaints about harassment, and to omit any robust
explanation of why present anti-harassment laws and the like are
sufficient to protect everyone else but not political speakers - who
require the functional equivalent of a prior restraint styled as
anonymity so that they may fire off their political shots freely and
at will. The occasional need for moderator intervention on this and
other listservs is proof positive that the high level of political
discourse the First Amendment (and First Amendment values animating
this list) is intended to further is harmed by anonymous "fire at
will" policies.
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