It is. One irony is that as now established, the government dictates disclosure for some, but not for those who retaliate with economic boycotts. But presumably, some (including the original speaker) may want to boycott the boycotters. In my mind, this is not a good way to live one's life or to organize one's politics, but many people seem to disagree.
The question of whether someone has a right to boycott, or to engage in other forms of peaceful, lawful retailiation (shunning?) should not be confused with whether government should have the power, or has a compelling interest, to facilitate such boycotts and retaliation against the wishes of the original speaker.
Nice appearance on Colbert, btw. Neatly calibrated. Some guests don't seem to get the program or their role, but you did and it made for a great little segment.
Indeed, isn't "economic retaliation" in the form of boycotts itself protected political speech with a long civil rights movement history??
Trevor Potter
Sent by Good Messaging (www.good.com)
-----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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