“Economic Boycotts as Harassment: The Threat to First Amendment Protected Speech in the Aftermath of Doe v. Reed”

Elian Dashev has written this very important student note for the Loyola of Los Angeles Law Review.  [Disclosure: I was the academic advisor on this note.]  Here is the abstract:

The recent U.S. Supreme Court case of Doe v. Reed called into question the effectiveness and, potentially, the legitimacy of the economic boycott as a tool to counteract the influence of Major Political Players in the electoral process—despite the protection that such boycotts have been afforded historically under the First Amendment. The holding in the case was very narrow: the Court deemed constitutional as a general matter the compelled disclosure of the names of the supporters of a referendum. However, in dicta, the Court acknowledged that disclosure could be subject to an as-applied challenge if there were a reasonable probability that disclosure would subject the signatories to “threats, harassment, or reprisals.” Indeed, included in the plaintiffs’ allegations of retaliation was a fear of economic boycotts. This Note argues that the Court should not allow Major Political Players to use economic boycotts, whether threatened or actual, as a justification for exemptions from disclosure requirements in as-applied challenges. To do so would undermine the fundamental First Amendment goals that are critical to our democracy and that outweigh any competing claims of harassment.

First, this Note illustrates how the economic boycott has increasingly become an effective and popular weapon in the arsenal of dissent to counteract the political influence of individuals, large corporations, special interest groups, and issue-based organizations that have access to large accumulations of wealth. Then, this Note reviews key Court rulings on the economic boycott as a protected First Amendment activity and on the establishment of the as-applied challenge and the harassment exemption. It also looks at the existing tension between the Court’s embrace of compelled disclosure and the Court’s protection of anonymous speech. This Note then examines the various opinions in Doe v. Reed and their potential to undermine the speech protection of economic boycotts in the context of elections. It considers how these opinions could have the effect of silencing speech and erecting barriers to dissent, and suggests that Major Political Players should not have the right to seek the protection from disclosure that is intended for politically persecuted groups. Finally, this Note argues that economic boycotts advance the core democratic and First Amendment values of truth-seeking and dissent and, in so doing, trump any disclosure exemptions that Major Political Players may claim.

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