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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