Chilling effects and good business

[Volokh, Eugene]

        I agree with Leslie that part of Tom English's decision may have
been justified by good business concerns.  But I wonder why we would
conjecture that it's *just* a matter of good business.  It seems to me that
when one is facing a legal proceeding brought by the government that seeks
to punish one for one's speech, at least part of the motivation for the
settlement is likely a concern about the possible risks of the continued
proceeding, no?  Wouldn't it be odd if English were indeed motivated *just*
by business concerns, and the government's actions against him were
irrelevant to his decision?  I suppose it's possible, but I just don't quite
see why we should assume it.

        But more broadly, this sort of "just a matter of 'good business'"
argument could be made with regard to a wide range of chilling effects.
Consider pre-NYT v. Sullivan libel law, and some example where a newspaper
decided not to print a reputation-injuring advertisement that they thought
was true; a defender of the pre-1964 libel law might say "Well, maybe this
is just 'good business' or just 'good journalism' -- maybe the newspaper was
just motivated by a fear that the story would be seen as false and unfair by
its readers (not by the jury), and thus alienate them and diminish the
newspaper's own reputation, or was just motivated by its desire to do the
right thing."  After all, many newspapers have internal rules constraining
their publication of reputation-injuring stories, probably requiring
investigation far greater than that required by NYT v. Sullivan.

        What would our response be?  I take it that it would be "Well, that
might be part of the newspaper's motivation -- but surely one can't so
easily dismiss the possibility that the newspaper was also being deterred by
the risk of facing a speech restriction."

        The same can be said with regard to the chilling effect of the
Communications Decency Act, of loyalty oaths, or of a wide variety of other
prosecutions.  As to most legally restricted or jeopardized speech, there's
usually some other reason why most speakers wouldn't engage in it -- concern
about the views of their neighbors, good taste, moral scruples, and the
like.  In any chilling effect argument, one might say "Well, maybe this is
just a matter of the defendant waking up to the non-legal (business, moral,
professional) consequences of his action."  This is especially true when the
case involves a settlement of a lawsuit or a plea bargain in a prosecution,
in which case the defendant isn't likely to keep fighting the legal action,
but is more likely to want to appear conciliatory or contrite.

        But the answer, I think, in all these cases, is that it's hard to
conclude from this that the government-enforced speech restriction has no
effect -- that this is really a matter of *just* nongovernmental pressure.
And if the government-enforced speech restriction does influence people not
to speak, that's a First Amendment problem, even if the defendants are
subject to other influences, too.


Leslie Goldstein writes:

> maybe this is just a matter of "good business"?
> leslie
>
> "Volokh, Eugene" wrote:
>
>
>
>               According to a fax from the Mass. Comm'n Against
> Discrimination, Tom English's Cottage settled the MCAD's complaint against
> it, on the following terms:
>
>               "1.  Mr. English will fire the bartender" (that's the
> bartender who allegedly said the jungle display celebrated Black History
> Month, and that the gorilla symbolized Martin Luther King, Jr.);
>
>               "2.  apologize for the hurt that the alleged statement has
> caused;"
>
>               "3.  volunteer to sponsor a public event addressing the
> topic of the history and contributions of African-American and
> Irish-American communities of the City of Boston;"
>
>               "4.  Mr. English will contribute $4000 as his contribution
> as a co-sponsor of [that event];"
>
>               "5.  will donate $500 to the Boston School Committee to
> sponsor an essay contest open to all Boston Public High School Juniors and
> Seniors addressing the same topic.  (Winner will be announced at the
> event.)"
>
>               To my knowledge the MCAD made no factual findings that the
> bartender did indeed say what he allegedly said -- the bartender had
> denied this.  According to English's statement of apology that the MCAD
> faxed me, English said that "To underscore my apology and to preserve the
> reputation of the 'Cottage' as a good member of the community, I have:  1.
> dismissed the bartender accused of making the racist remarks to the Herald
> reporters because I simply will not tolerate even the *accusation* that
> someone who works at the Cottage would make this kind of hurtful remark to
> anyone or about anybody's heritage . . ." (emphasis in original).
>
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