Addressing conservative complaints that liberal groups campaigning to get corporations to drop funding for the American Legislative Exchange Council are engaged in intimidation of speech, Election Law Blog’s Rick Hasen responds that “it looks to me like protected First Amendment boycott-like activity.”
Of course, it can be both. One question society is going to to have to ask itself is whether it wants the meanness of its current trajectory. While boycotts have some honorable history and can be a useful tool, nobody really much wants to live in a boycott world. Labor law has long prohibited secondary boycotts, largely for that reason.
We’ll also have to address more honestly whether the government has a compelling interest to force people to disclose activity that may subject them to boycotts and other forms of harassment. Notice that those boycotting and organizing boycotts are not required to disclose themselves, neither their identity nor their sources of financing.
Justice Scalia has voiced concern that a world without compulsory disclosure would be particularly nasty and that mandating people take responsibility for their political activity bolsters democracy.
Justice Scalia also made a forceful defense of election-related disclosure last year in a concurring opinion in Doe v. Reed. In that case, which upheld disclosure requirements for petition signers for ballot measures, Justice Scalia wrote: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
I think he’s got it backwards – compulsory disclosure, supported primarily because it enables opponents of speech to engage in boycotts and other harassment, is creating an increasingly nasty political environment. The major arguments now made in favor of disclosure is that disclosure will allow other members of society to “hold the speaker accountable” by harassaing, bullying, and boycotting.
One can certainly see something as protected First Amendment activity while recognizing it as intimidation as well. And that raises the question as to what interest the government has in enabling intimidation.
