Benetton and govt encouragement of speech-based boycott

Mark Tushnet TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU
Tue Mar 21 08:00:59 PST 2000


Mark Scarberry asks whether the Benetton ad campaign might create a hostile environment for "relatives of murder victims" under public accommodations laws.  Are there any statutes or ordinances that make "relatives of murder victims" a protected class under public accommodations laws?  Or (as I suspect, though I may be wrong) is this an example of what I call "Ally McBeal law," a "law" that sounds like it might exist but really doesn't?

<<< "Scarberry, Mark" <Mark.Scarberry at PEPPERDINE.EDU>  3/20  7:25p >>>
Today's (March 20's) Wall St. Journal includes an op-ed piece by Jerry Della
Famina on Benetton's clothing ad campaigns. The latest (as you probably
know) is an anti-death penalty campaign that features death row inmates. I
think the campaign is disgusting (as several of Benetton's prior campaigns
were), but it is very clearly protected speech (unless you are willing to
make the argument mentioned in the last paragraph of this message). The
op-ed piece states that the Democratic-controlled California State Assembly
(our lower house) voted 59-8 last week in favor of a resolution advocating
that Californians boycott Benetton.

According to Della Famina's piece, Benetton's sales in the U.S. have
plummeted over the past few years, and thus there may be little harm a
boycott could do to Benetton. Nevertheless, isn't it troubling to have a
legislative body call for an economic boycott in response to protected
speech?

(Is anyone willing to argue that it is not protected speech because it is
speech by a commercial enterprise that may create a negative atmosphere in
Benetton stores for relatives of murder victims, and thus potentially
violate public accommodation laws?)

Mark S. Scarberry
Pepperdine University School of Law
mailto:mark.scarberry at pepperdine.edu



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