Indeed it is. The question is, to what extent the government should be
enabling the creation of Enemies Lists so people know whom to target for
economic (or other) retaliation. Should we require all business entities to
post the views of the owners on controversial issues, so that people know
who to boycott? My parents used to own a lumber yard in Hawaii, should the
government have required them to identify themselves with a sign at their
business as opponents of that state's health care employer mandate, or
supporters of gay rights, so customers could determine whether or not they
wanted to do business with them?
Oh, and I assume that there is little problem then with the HUAC hearings of
the Fifties that forced certain Hollywood actors and writers to identify
their political leanings, so that the studios could impose an economic
boycott of people identified as having the "wrong" beliefs?
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 Trevor Potter
Sent: Thursday, April 07, 2011 10:50 AM
To: Volokh, Eugene; election-law@mailman.lls.edu
Subject: Re: [EL] The limits of "anti-harassment laws" as means for
protecting anonymity
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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