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Boycotts, Free Speech, and the Unprincipled Left

Netflix has said it will consider boycotting Georgia for its productions if that state goes through with its antiabortion law. And this is not the first time in recent memory that corporations have boycotted or threatened boycott because of state laws. Some companies did the same when Indiana passed a law protecting religious freedom, one modelled on the federal Religious Freedom Restoration Act. But no one to my knowledge on the left has raised any objection to this flexing of corporate muscle and many in fact applauded the corporate actions, as the popular hashtag #Boycottindiana showed.

As a matter of principle, I do not oppose boycotts for ideological reasons, although I do not support the substance of these particular boycotts. Boycotts represent the exercise of the liberty to buy from whom one chooses. But it seems to me the height of hypocrisy for the left to approve of these boycotts while opposing the right of corporations to speak out at election time. The left worries that corporations will use their power to distort democratic choice through their speech. Boycotts are also an exercise of corporate power to influence democracy.

Indeed, boycotts are more problematic both as a matter of political theory and the Constitution. Corporate speech, like all speech, tries to persuade citizens to exercise their franchise according to the views of the persuader.  Corporate influence is thus mediated by the reasoned deliberations of the voter. Boycotts on the other hand attempt put the livelihood of some voters and companies at risk. It is a use of economic power that the left calls coercive in other contexts.

As a constitutional matter, corporate speech also stands on much stronger ground. It is political speech—speech that gets most protection under the First Amendment. (It is well settled that government restrictions targeted at money to exercise  speech rights or for that matter other rights  are treated as a potential violation of the right). Boycotts are conduct. Boycotts enjoy much less protection under the First Amendment, as the left itself argues when it comes to bakers who would like to boycott same-sex weddings.

The best explanation of the difference of the left stance’s on corporate boycotts and corporate speech is not principle, but simply the political incidence of the kind of action at issue. Corporate speech on balance is likely to help the right, because the dominant voices in our society—the media and academia—already lean sharply to the left. And this imbalance can have an effect. For instance, it is well-known that New York Times editorial endorsements help the endorsed candidates win local elections. A recent study has shown that even its news pages are now dominated by current left concerns, as measured by the sharply increasing appearance of words like social justice.

Restrictions on corporate speech will not affect the influence of the media, so long as laws exempt media corporations as they inevitably do. Speech by non-media corporations does not even need to lean right to break up this hegemony. Even if such corporate speech is relatively ideologically balanced, its addition to the media and academic conversation will make for a more equal field of political battle overall—one beneficial on balance to the right.

The incidence of corporate boycotts, unlike corporate speech, advances the left. The companies likely to engage in this behavior will boycott on issues of concern to the left. Entertainment companies of the kind that threaten to boycott Georgia are a case in point. The talent on which their enterprises depend tend to be the wokest of woke and, like children, need constant attention. And even if it did not make some business sense for the companies to consider boycotts in favor of the latest left-liberal cause, their company executives inhabit the same Hollywood bubble and will receive personal accolades for their stance even if it comes at the expense of corporate profits.

Sadly, the left position on speech, which appeared principled in decades past, is now revealed to shift based on the interests of the day. Consider also the case of anonymous speech and the anonymous donations to support speech, without which speech cannot be effective. Many of the movements most celebrated by progressives depended on such anonymous support. The abolitionist and civil rights movement are but two examples.

For the moment, however, the left now styles at least some kinds of anonymity as “dark money.” Complaints about dark money have become the staple of Democratic objections at judicial confirmation hearings, particularly from Senator Whitehouse, who seems to think that dark money is the root of all political evil.

The position on dark money also makes sense as a matter of interest because of the left’s domination of the media and the tech and entertainment companies that are likely to fire those whose donations are revealed. The media can mount publicity campaigns against some of those who donate and then the companies can serve as the executioners of those who have made politically incorrect donations. Recall that the CEO of Mozilla, the nonprofit browser company, resigned under pressure because it was found that he had donated to a referendum in support of keeping marriage within traditional bounds. In contrast, if an officer at GE contributed to the campaign of Bernie Sanders, nothing would happen to him, although Sanders’ program would harm the company’s bottom line.

The reaction of friends of liberty should be to double down on principle and political activism simultaneously. Thus, what they should emphatically not do is use state power to coerce the boycotters through banning business in the state. That will only give cover to those municipalities who want to ban conservative businesses, as San Antonio has done with Chick-fil-A. The left’s contrasting lack of principle will be costly at least so long as there are principled liberals who favor free speech. While they are a declining band, they still exist and remain numerous among university professors, albeit not among university administrators.

Moreover, in the long run boycotts by woke entertainment companies may hurt these companies. Most Americans watch movies and television just to be entertained and ignore the left-liberal slant of much of what they see. These boycotts will bring home the reality of bias in the entertainment industry. And just as the increasingly obvious bias in the mainstream media generated alternatives, the transparency of bias here may give rise to conservative or at non-leftist entertainment companies.

If Netflix boycotts Georgia, Georgians should boycott Netflix. Non-profit associations will be needed to coordinate such campaigns. And if necessary Georgia could pass laws to permit anonymity of donors to such organizations. Thus, friends of liberty should both stand publicly on principle but support the anonymity that works on behalf of those principles.

Reader Discussion

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on June 13, 2019 at 09:53:59 am

Oh come on now, John?

Were you not entertained by Gillettes latest ad which showed the understanding father showing his transgender child how to shave like a man?

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gabe
on June 13, 2019 at 10:39:42 am

Nice article, John. Could you give an example of what you mean by corporate speech? It seems to me that the left is most worked up about corporate spending on campaigns, not speech as such. I think the missing piece in your article is the crucial argument that campaign spending *is* political speech and deserves First Amendment protection.

On its face, at least, it is not crazy for many onlookers to identify a common-sense distinction between the two activities.

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John Hungerford
on June 13, 2019 at 10:46:12 am

[…] Source: Boycotts, Free Speech, and the Unprincipled Left […]

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Image of Boycotts, Free Speech, and the Unprincipled Left – Melvin Charles McDowell, Member of PA Republican State Committee, Representing Bedford County
Boycotts, Free Speech, and the Unprincipled Left – Melvin Charles McDowell, Member of PA Republican State Committee, Representing Bedford County
on June 13, 2019 at 11:12:43 am

"Corporate speech on balance is likely to help the right, because the dominant voices in our society—the media and academia—already lean sharply to the left"

This is arguable at best. I suppose Mr Hungerford (above) is correct that McGinnis needs to clarify what in his mind is corporate speech.
Did not 180 corporations sign a pro-abortion letter to the NYTimes?
Did not Dicks sporting Goods decide to "take a stand" against 2nd Amendment rights (much to their chagrin as sales tanked). Look at Gillette's recent ads. Have an agenda? Would one say it is "right wing"?
Think of all the corporations, not just the Silicon Valley "Sillies" that have decided to demonstrate their "wokeness."

And it is not just in the area of "advertising" speech; rather, look at the distribution of campaign contributions over the last several elections - NewsFlash: The Dems are getting the majority of monies from Wall Street and other major corporate elements.

NEWSFLASH 2: The "immigration crazy / open borders" Koch Brothers announced yesterday that they too will be FUNDING Democrat campaigns in 2020.

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gabe
on June 13, 2019 at 11:33:49 am

Dear John,
I do indeed mean corporate speech in a campaign. I have written elsewhere at length why regulating money that the speaker will use for speech is an obvious violation of the First Amendment, because it is targeted at speech.https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733768 For instance, a law that said the New York Times could not spend more than a thousand dollars on editorials would regulate money, but would be treated as a law restraining speech. Even the "liberal" justices on the court do not accept the facile slogan that money is not speech. That argument would authorize government suppression of all speech, because all speech requires money to disseminate. For a nice video on the subject, see http://volokh.com/2013/09/10/money-speech/

But thanks for your comment and I will add a sentence and citation to make this point clear.

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John O. McGinnis
on June 13, 2019 at 11:36:57 am

Netflix has said it will consider boycotting Georgia for its productions if that state goes through with its antiabortion law. And this is not the first time in recent memory that corporations have boycotted or threatened boycott because of state laws. Some companies did the same when Indiana passed a law protecting religious freedom, one modelled on the federal Religious Freedom Restoration Act. But no one to my knowledge on the left has raised any objection to this flexing of corporate muscle….

[I]n the long run boycotts by woke entertainment companies may hurt these companies. Most Americans watch movies and television just to be entertained and ignore the left-liberal slant of much of what they see. These boycotts will bring home the reality of bias in the entertainment industry. And just as the increasingly obvious bias in the mainstream media generated alternatives, the transparency of bias here may give rise to conservative or at non-leftist entertainment companies.

It may. But I don’t see corporations joining boycotts for lefty issues; they join them for popular issues. Indiana’s law was perceived as an effort to oppress homosexuals, while Georgia’s law is expressly an effort to outlaw abortion. Both of those issues poll badly with Hollywood—a perfectly valid consideration for a media company. But these issues also poll badly with the public at large—especially the coveted 18-34 demographic.

As a matter of principle, I do not oppose boycotts for ideological reasons, although I do not support the substance of these particular boycotts. Boycotts represent the exercise of the liberty to buy from whom one chooses.

To what extent should we appeal to social opprobrium—which may result in boycotts—as a means of social control? Arguably it’s all a matter of free speech/free association—so no principled basis for objection?

People may announce that they’re organizing a boycott of the grocery store because the store won’t hire Jews. Or, alternatively, because the store is run by Jews. Different objectives, same tactic. McGinnis suggests that there’s no principled basis for objecting to the tactic that does not ultimately devolve into an opportunistic judgment about the objective. I can’t refute the argument—but it’s a bitter pill to swallow.

Can anyone articulate a principled basis to object to the tactic of appealing to social opprobrium/boycotts in some contexts but not others?

[I]t seems to me the height of hypocrisy for the left to approve of these boycotts while opposing the right of corporations to speak out at election time. The left worries that corporations will use their power to distort democratic choice through their speech. Boycotts are also an exercise of corporate power to influence democracy.

Hm. Not a bad argument; McGinnis is on a roll today. I see two issues.

1. Limits on corporate speech as a means to limit the speech of the wealthy.
Regardless of the merits of this objective, I question its efficacy: The rich will never lack opportunities to express their views. That brings this rationale into doubt.

2. Limits on corporate speech as a means to limit anonymous speech.

NAACP v. Alabama upheld people’s right to make anonymous donations to groups (for the purpose of advocacy and lobbying? Not sure.) McIntyre v. Ohio Elections Commission upheld the right to distribute pamphlets anonymously. In short, the right to speak anonymously seems to be protected. So again, this doesn’t seem like a valid rationale to limit corporate speech.

Corporate speech, like all speech, tries to persuade citizens to exercise their franchise according to the views of the persuader. Corporate influence is thus mediated by the reasoned deliberations of the voter.

Covert Russian efforts to influence the election were also primarily speech. Al Quida recruitment videos are speech. Deep Fake videos of Zuckerberg are speech. Same conclusion?

I ask this in earnest. Marketers have grown quite sophisticated in sending persuasive messages. Persuasion need not bear any relationship to truth or rationality. (Recall the car ad campaign that didn’t even show the car.) And (almost) all of this qualifies as protected free speech.

If YouTube doesn’t like the fact that its forum provides access to white supremacist videos, the company has the discretion to take down the videos. But if a government agency ran YouTube—or if some antitrust litigation resulted in YouTube becoming a regulated platform/common carrier—I wonder if the company would retain the same discretion. Hateful speech still qualifies as speech.

So I generally recognize that corporations have speech rights. I draw the line at Free Exercise—but that’s just an opinion shared by me and several centuries of “alter ego” precedent. ("Did you ever expect a corporation to have a conscience, when it has no soul to be damned and no body to be kicked?")

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nobody.really
on June 13, 2019 at 11:45:22 am

Thanks for the links! I'll take a look.

Always a pleasure to see your posts in my inbox (just about) each morning.

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John Hungerford
on June 13, 2019 at 12:56:52 pm

I don't know if you can use terms such as "the Left" and "the Right" without some attempt at definition. Otherwise one risks sounding like a hack. The terms mean something in the mind of the writer but how are we to know?

I recommend using terms such as "some", "all", "over 3 million people", "bigots" or even "Democrats" (if you think the behavior is common to Democrats).

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John Locke
on June 13, 2019 at 14:31:10 pm

There is one aspect to boycotts that might be worth thinking about. The original boycott (of a guy called Charles Cunningham Boycott) was an act of ostracism, shunning. The real purpose of boycotts today is less economic than moral. To choose to start a boycott is to send the message that the ones boycotted are such pariahs, such moral lepers, so vile, that no decent person would have anything to do with them, not even in commerce. That is obviously the case with BDS, which has no prospect of harming Israel economically. It is instead meant to persuade the naive that Israel is so evil, so disgusting, that no decent person would even, say, talk with an Israeli academic or buy Sabra Hummus. The boycotts discussed in the article are partly economic but I think their main purpose is to rally all those who think themselves decent to accept certain opinions as unquestionable and dissent as loathsome . As such the profusion of boycotts has the effect of turning policy disputes into apocalyptic moral confrontations. In general, we need such habit like another hole in the head. Arguably, with overuse, it will also have the effect of trivializing the very moral indignation it seeks to arouse. But for the time being, it's a mode of virtue-signalling, posturing and demonizing that ought to be generally discouraged and saved only for the most extreme cases.

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Fred Baumann
on June 13, 2019 at 16:14:05 pm

nobody:

"If YouTube doesn’t like the fact that its forum provides access to white supremacist videos, the company has the discretion to take down the videos."

But would you agree to letting the phone companies to take down the phone conversations of the ever alleged but almost vaporous presence of white supremacists? or for that Matter Elijah Muhammad? or the Muslim Brotherhood?

Yep, I know - separate issue. Are the You Tubesters the equivalent of a telecommunications monopoly? do they (or should they) operate at the sufferance of the gubmint?

As for me, I WISH corporations would just shut up? I would never, however, deny them their right to pander to a certain demographic. I would rather that they simply produce a product or service. If it is good, I will purchase it and I don't give a "rat's petuttie" what they think of Roe v Wade, Loving or anything else.

Of course, ALWAYS absent from these diatribes against CORPORATE speech is UNION Speech, all of whom are akin, if not legally so recognized, as CORPORATIONS.

I guess some sauce is not to be applied to certain ganders (or is that "genders' -Ha).

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gabe
on June 14, 2019 at 12:24:35 pm

Query: Should CREDIT CARD COMPANIES be allowed to boycott providing banking services between willing buyers and sellers if the companies don't like one party to the transaction? Is there any reason to treat these firms differently than other firms regarding the discretion to boycott?

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nobody.really
on June 14, 2019 at 17:54:10 pm

McGinnis: "Corporate speech, like all speech, tries to persuade citizens to exercise their franchise according to the views of the persuader. Corporate influence is thus mediated by the reasoned deliberations of the voter."

nobody.really: "Covert Russian efforts to influence the election were also primarily speech.... Same conclusion?"

Ellen Weintraub, chair, Federal Election Commission: "I would not have thought I had to say this.... Let me make something 100% clear to the American public and anyone running for public office: It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election. This is not a novel concept.

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nobody.really

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