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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