Silencing and free speech
VOLOKH at mail.law.ucla.edu
Thu Feb 28 13:30:20 PST 2002
This brings up a point that has always puzzled about the arguments
that "It's OK to restrict speech that itself silences people." (My
apologies if I'd already mentioned this on the list before.)
Say, for instance, a private group organizes a boycott of a newspaper to
pressure it into dropping a columnist whose work the group finds offensive.
See, e.g., Jill Stewart, Free This Man; Can Black Conservatives Speak Their
Minds in America? Ask KABC Talk-Show Host Larry Elder, the Target of a Black
Nationalist Group in L.A., New Times (L.A.), July 3, 1997 (describing
boycott of sponsors of black conservative talk show host Larry Elder's radio
show, aimed at getting the radio station to take him off the air); James
Warren, Andy Rooney Suspended, But Denies Racist Comment, Chi. Trib., Feb.
9, 1990, § 1, at 3 (describing public pressure that caused CBS to suspend 60
Minutes commentator Andy Rooney for allegedly making a racist comment);
Jerry Berger, Kennedy Decries Reagan Civil Rights Policies, United Press
Int'l, Jan. 18, 1988, available in LEXIS, News Library, UPI File (describing
public pressure that caused CBS to fire Jimmy "The Greek" Snyder on similar
This speech is pretty clearly likely to discourage the speaker, the
speaker's employers, and other potential speakers from saying certain
things. In fact, it's *intended* to do so. Does it follow that the
government may ban this sort of "silencing" speech? And if it can't ban
speech that's intended to silence people, and that through economic pressure
succeeds in silencing them, then why can the government ban speech whose
supposed "silencing" effect is far more tenuous?
Likewise, political bullies try to silence their opponents not only by
revealing embarrassing private information about them, but also by calling
them nasty (but nonlibelous) names, citing their interracial marriages as
evidence that they are traitors to their race, attacking them with bitter
and unfair parodies, or saying things aimed at undermining their business
affairs. Depending on the era, the risk of having your arguments called
"Communist," "un-American," "racist," or "sexist" (even if your arguments
really don't fall into those categories) has discouraged many people from
expressing viewpoints that might draw such rhetoric -- and I suspect that
the rhetoric was often used precisely to deter people from expressing
certain viewpoints. Who among us hasn't at times decided to stay quiet in
order to avoid having to deal with our opponents' vituperation? But again,
even though this speech may have the potential to "silence" -- in my view,
at least as much as pornography or bigoted speech has the potential to
silence -- and is often intended to silence, it's still protected. Should
we strip it of its protection?
See, e.g., John L. Mitchell, Larry Knows Best, L.A. Times, May 31, 1998,
Magazine sec., at 12 ("Out of the black community came anonymous fliers
accusing [conservative black talk show host Larry] Elder of hate speech,
describing him as a 'White Man's Poster Boy' and a 'boot-licking Uncle
Tom.'"); Rick Pearson & Graeme Zielinski, Senator Apologizes for Epithet,
Chi. Trib., Sept. 8, 1998, at 1 (quoting Sen. Carol Moseley-Braun's response
to columnist George Will's criticism of her: "'I think because he could not
say 'nigger,' he said the word 'corrupt,'' Moseley-Braun said, although the
word 'corrupt' did not appear in the conservative commentator's column.
'George Will can just take his hood and go back to wherever he came from,'
she added, apparently alluding to hoods worn by members of the Ku Klux
Klan."); The News No Longer With Keith, The Hotline, Dec. 3, 1998 (People
section) (quoting MSNBC anchor Keith Olbermann as saying, while criticizing
Ken Starr's investigation of Bill Clinton, "It finally dawned on me that the
person Ken Starr has reminded me of, facially, all this time was Heinrich
Himmler, including the glasses"); Amy Wallace, He's Either Mr. Right or Mr.
Wrong, L.A. Times, Mar. 31, 1996, at 12 ("State Sen. Diane Watson of Los
Angeles accused [Ward Connerly, leader of the California
anti-race-preference campaign] of selling out his own people. 'He probably
feels this makes him more white than black, and that's what he really wanted
to be,' she said, adding, 'He married a white woman.'"); Hustler Magazine v.
Falwell, 485 U.S. 46 (1988); Jill Hodges, Planned Parenthood List of Donors
in Rivals' Hands, Minn. Star Trib., Mar. 19, 1992, at 1A (describing plans
of anti-abortion activists to boycott and picket corporations that
contribute to Planned Parenthood); Charles V. Zehren, Caught in Abortion
Crossfire; Both Sides Pressure Firms, Newsday, Aug. 13, 1989, at 6
(describing National Organization for Women's boycott of Domino's Pizza,
whose chief executive was giving money to anti-abortion groups).
Judy Baer writes:
[Frank Cross wrote:] Maybe I'm missing the meaning of "silencing"
here, and this could be explained.
> You are. "Silence" is understood by feminists in different ways re
> pornography. See Susan Griffin, PORNOGRAPHY AND SILENCE, and Catharine
> MacKinnon, ONLY WORDS.
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