pageok
pageok
pageok
Private Economic Retaliation Against Speakers (Here, Entertainers) Based on Their Speech:

I thought I'd pass along another excerpt from my new Deterring Speech: When Is It "McCarthyism"? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)); I omit the footnotes, but they're all in the PDF; if you wonder whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question. Next week, I'll probably blog excerpts on economic retaliation against speakers who are commentators rather than entertainers, and then on economic retaliation against other employees.

The blacklist is back, we are told. After Natalie Maines, lead singer of the country music band the Dixie Chicks, told fans during a London concert, "[W]e're ashamed the President of the United States is from Texas," many stations stopped playing her music, and some stations organized rallies at which Dixie Chicks CDs were crushed by bulldozers. MCI stopped using actor Danny Glover in its commercials, apparently because he signed various statements that harshly opposed the Iraq war and defended Fidel Castro. Susan Sarandon and Tim Robbins were disinvited from speaking engagements because of their opposition to the war in Iraq; Sean Penn apparently lost an acting role for the same reason.

How should we react when private entities economically retaliate against people based on their speech, or citizens urge those entities to do this? The retaliation is generally legal. Though some state laws restrict employers' power to retaliate against employees for their political speech, I know of no laws that restrict companies' power to retaliate against truly independent contractors. Moreover, media organizations may have a constitutional right to fire their employees for their political views, even if state law prohibits such firings. Calls for such retaliation by the public are likewise constitutionally protected. But are economic retaliation and calls for retaliation proper, or should we develop social norms against them? This, it seems to me, is a hard question, but let me offer a few observations.

Let me start by focusing on speech by entertainers. Entertainers are valued speakers because people like them. Danny Glover makes a good pitchman for MCI because people feel good about him: If MCI simply wanted someone who could act well in its commercials, it could have hired a nameless actor for much less. Susan Sarandon was invited to speak to the United Way because people want to hear the well-liked movie star Susan Sarandon, not because Sarandon is a national expert on women in volunteerism. People go to movies largely because they like the stars' work, but also because they like the stars or at least like the image that the stars project; the same is true for musicians. That's a big part of why entertainers have publicists.

When people stop liking you, whether because they think that you're rude, vulgar, or foolish, your value as a speaker or pitchman falls. People are less likely to want to hear you or buy products that you promote. Those who hire you, invite you, or play your music might understandably switch to someone who alienates fewer audience members. What you gain from your sex appeal, coolness, or association with worthy causes, you lose from what people see as your rudeness, folly, hostility to projects they support, or association with causes they dislike. Tolerance demands that people neither beat you up for your views nor throw you in jail for them. But it doesn't demand that people continue to like you—and if they don't like you, then you won't be as effective a promoter.

Naturally this may lead entertainers to think twice before expressing controversial views. The boycott against Florida orange juice because of spokeswoman Anita Bryant's anti-gay stand surely taught many entertainers that. But if your livelihood turns on people's affection for you, you can't protect that affection while saying things that turn people off. And tolerance doesn't require that people buy products promoted by celebrities whom they've come to distrust, hear songs by singers whom they no longer enjoy, or listen to speeches by entertainers who they've concluded are fools.

And just as entertainers derive much of their income from the public's affection for them, they also derive much of their political clout from such affection and from their successes in fields quite unrelated to politics. Danny Glover's signature on the anti-Iraq-war letter was valuable because he was a movie star, not because he was learned on international law. Natalie Maines had a large audience for her expression of contempt for President Bush because she was invited to sing, not because she was invited to deliver a political lecture.

Consumers know that by supporting Natalie Maines, they are indirectly helping support Maines' political message, just as consumers know that by supporting a business, they are indirectly helping support the projects that the business or its owner funds. It seems quite legitimate for consumers to withdraw their support of entertainers and to use their economic power to pressure others to withdraw their support. Groups have organized consumer boycotts of businesses that contribute to Operation Rescue, to pro-life candidates and ballot measures, and to Planned Parenthood; others have pressured businesses to stop advertising on conservative Sinclair Broadcasting. Consumer retaliation against entertainers seems equally legitimate when a celebrity supports a cause by using her fame, rather than a business supporting a cause by using its money.

Related Posts (on one page):

  1. Private Economic Retaliation Against Speakers (Here, Commentators) Based on Their Speech:
  2. Private Economic Retaliation Against Speakers (Here, Entertainers) Based on Their Speech:
Hans Bader (mail):
The Washington Supreme Court held that the state's law against discrimination (specifically, its ban on political discrimination) had to give way to the First Amendment (specifically the right to a free press) in the case of a newspaper that fired a reporter because of her political activities in order to preserve its objectivity.

Thus, not only does a private organization not have to ignore the speech of its members, it sometimes has an affirmative constitutional right to take voluntary action against members for such speech.

Ironically, Washington, D.C., home of many of America's think tanks and ideological groups, bans all sorts of rational discrimination in its so-called D.C. Human Rights Act, which prohibits employers from considering things like political affiliation, which college an applicant went to, or arrest record.

As the late Chief Justice Rehnquist observed in a footnote in his opinion in Boy Scouts of America v. Dale (2000), as antidiscrimination ordinances encompass progressively more categories, their tension with the First Amendment will grow.
1.20.2006 10:50am
JLR (mail) (www):
This is directly related to the Holmesian concept of "the marketplace of ideas" (Abrams v. United States , 250 US 616 (1919). But something that I have wondered about "the marketplace of ideas" from a legal theory standpoint is the following: if it really is a "marketplace," shouldn't there be some sort of lemon law for failed speech? But setting aside that question, it seems clear that, if we do have a marketplace of ideas, it is acceptable for consumers to choose to consume the best speech, and publicly protest against (not simply just refuse to consume) the worst speech. If the Corvair can be unsafe at any speed, so can unfortunate remarks by uninformed celebrities. Like any analogy, there are limits to its applicability. But I find this analogy compelling.

A side question to Professor Volokh: what are your responses to the comments in the thread about the Davis Enterprise hypothetical? Thank you.
1.20.2006 10:54am
JLR (mail) (www):
P.S. -- And not just publicly protest against bad speech made by celebrities, but withdraw endorsement and testimonial deals made with them as well.
1.20.2006 11:00am
JohnAnnArbor:
Funny how boycotts and protests against conservative individuals and causes is called "activism," but exactly the same thing against liberal individuals and causes is "intimidation and McCarthyism."
1.20.2006 11:08am
Mr Diablo:
Funny how boycotts and protests against conservative things like raising a confederate flag over South Carolina in 1962 to celebrate treason are called "unAmerican" and "harmful to the wrong people," but when the American Family Association advocates a protest against Ford Motor Co. (an American institution that is responsible for thousands of jobs and a major player in the American economy -- already teetering on the brink of collapse) beacuse of their stance on being supportive and, god-forbid, trying to sell their product to gay and lesbian people, conservatives call it "consumer activism" and a fawn over the power to hamstring American corporations they possess.

Funny how JohnAnnArbor seems unable to see this hypocrisy when it is pointed at him.
1.20.2006 11:27am
Smithy (mail):
How is this not just part of the free market?

What do you want to do, force people to buy the records of dissident "artists"? We've seen twenty years of treason from the left-wing musical world, starting with Bruce Springsteen's work during the Reagan era. And a lot of us are sick of it. A lot of us have no patience for music, if you can even call it that, is essentially subversive.

It's a bit sad to see the way the name McCarthy is dragged through the dirt, almost reflexively, by those who know nothing about what he did or what he stood for. The portrayal of Senator Joe McCarthy as a wild-eyed demagogue destroying innocent lives is sheer liberal hobgoblinism. Liberals weren't cowering in fear during the McCarthy era. They were systematically undermining the nation's ability to defend itself while waging a bellicose campaign of lies to blacken McCarthy's name.
1.20.2006 11:38am
Kristian (mail) (www):
In some ways, this is similar to an athlete who is injured being unable to keep a job / sign a new contract for more money. Unless the althete has a guaranteed contract or an career insurance policy, they will be 'boycotted' by owners at their previous value.

Fortunately, like atheletes, rehabilitation can improve earning power.

Unlike the athelete, though, many of these speech 'injuries' are self inflicted.
1.20.2006 11:43am
Bob Bobstein (mail):
Prof Volokh's economic analysis of this issue is reasonable. I think that he overlooks the reason that the Natalie Maines affair was uniquely troubling.

It was very different than MCI declining to continue to employ someone; there were actual rallies against Maines conducted by braodcasting companies that wanted to express long-held support for/curry favor with a given political party. The bland assertion that "Consumers know that by supporting Natalie Maines, they are indirectly helping support Maines' political message" doesn't seem to capture the actual dynamic by which Maines' remarks wound up in the public eye. Maybe I'm mistaken and she was o nsome kind of crusade, but I thought she made some interperate remarks at a press conference.

Of course the broadcasting companies responsible had the right to fund and spotlight these protests, but I think these particular activities deserve social norms against them. I don't feel that way about MCI's decision to fire Glover.
1.20.2006 11:44am
Houston Lawyer:
I'm more interested in what the government can do regarding a government employee's speech. Right now we are having a huge public spat in Houston regarding a police officer who "went off on" the City of Houston's car chase policy following a two-hour chase in which the police policy was not to intervene. The driver eventually crashed into a car (on live TV) carrying a woman, her daughter and infant granddaughter. Fortunately, no one was seriously injured, but the officer was visibly upset and stated to the cameras that the policy was wrong.

He is now sitting at a desk job. According to news reports, his speech, while in uniform, violated police department policy. Has he given up his free speech rights?

I know a private employer could fire him, but can the government?
1.20.2006 11:51am
Blar (mail) (www):
Two issues here. First, there's a difference cases where consumers' reaction to a celebrity's statements lead businesses to respond to consumers' new tastes, on the one hand, and cases where businesses react directly to the celebrity's statements based on their own values. You discuss the former kind of change, but my understanding is that many forms of retaliation to political speech (like Clear Channel's refusal to play the Dixie Chicks and some protests staged by businesses) are of the latter type. That type of retaliation is more troubling, because in that case the economic harm is 1) intended as punishment, rather than being an indirect consequence how people feel about other people, and 2) a use of market power by a narrow group of already powerful people, rather than an action taken by a broad group of people (as in a boycott).

The second issue is that it sometimes is troubling when people react to a celebrity's political views strongly enough to change their consumer decisions. This is most obvious when they are overreacting in a way that is indicative of some kind of prejudice that is nearly as unfounded as racism. In this case, the newfound dislike of the entertainer (or even the conscious decision to boycott) based on the opinions they've expressed is analogous to a dislike of an entertainer (or even a conscious decision to boycott) based on nothing more than the person's race. Maybe we shouldn't blame businesses for catering to these nasty preferences, but there is a problem here. Even when the consumer reaction is based on less offensive grounds, it can still be a problem for more and more of our live to get pulled into the same Red vs. Blue antagonism. This represents a troubling trend in an open, pluralistic society, involving a loss of civility, a drop in respect and understanding between people with different political views, and so on. If it spreads widely enough, it can also have negative economic consequences, since it's a waste of people's efforts to direct their economic activity at zero-sum games of politics instead of positive-sum economic games.
1.20.2006 11:51am
guest91782:
It hardly takes seven paragraphs to convince people of the totally unobjectionable idea of not buying what you don't like. But I wonder if there is not a more unformfortable relationship between these actors and government in some of these examples that makes the conduct not wholly "private." Did radio stations pull the Dixie Chicks because of popular outcry or because they wanted to look above board (or on board in the case of clear channel) when license granting time came around? In situations when the government has some leverage against private companies, if they use it to silence critics its not as bald as McCarthism but the resulting private action isn't entirely private.
1.20.2006 11:53am
Justin (mail):
I agree with Professor Volokh's positions with the following caveats that I hope he appreciates.

First of all, I think Bob Bobstien and Blair make valid, although not fatal points that your article made, and those points could be addressed in a follow up article.

Secondly, I think you cannot look at the first amendment issues involving Maines without looking to Antitrust law and the unique setup of the radio industry. Without market power, and/or "Payola", there is no issue. Individual modern country stations that refuse to play talented art will lose business to those who don't, and the "marketplace of ideas" will protect the underlying principles of the First Amendment.

But what we have here involves market power, secondary boycotts, and payola. Radio stations are protected due to niche markets, network effects, government regulations, and limited bandwidth - the decision to play music is nondemocratic and is not simply fulfilling consumer preferences but determining them. Furthermore, to the degree third party organizations (such as the Christian Coalition) boycott radio stations for doing business with Natalie Maines, there is the same problem that exists, (though courts will find such boycotts legal in most instances), as when the Christian Coalition boycotts Ford for buying products from a company that donates money to planned parenthood.

In other words, although what Clear Channel did to Natalie Maines was clearly legal, it was hardly ordinary. And whether it should be legal in light of the particular market, political, and regulatory situation is a very complex issue - I hope those issues can be addressed in a future article. It's something I'd take a stab at myself, except that this is wholely outside of my area of expertise. Maybe Eric Muller would care to take a stab?

Also indirectly, I wonder if the web can act as a broad version of a writer's workshop, in which professors put out working drafts into a public arena that is unlikely to receive "too much" attention, receive feedback via comments, and amend their work accordingly.
1.20.2006 12:02pm
Andy Freeman (mail):
> thought [Maines] made some interperate remarks at a press conference.

It started when she made a "suck up" remark to an overseas audience. They applauded her. Her home audience wasn't quite so appreciative.
1.20.2006 12:07pm
MDJD2B (mail):
Did radio stations pull the Dixie Chicks because of popular outcry or because they wanted to look above board (or on board in the case of clear channel) when license granting time came around?

Or because the individuals making the decisions genuinely disagree with the ideas the artists express, and do not want to aid in their dissemination, or want to reduce their dissemination. They have to answer to their stockholders for potential dilution of thie quality and popularity of their product by not maximizing the appeal of the product they air, but it's not clear they have to answer to anyone else.
1.20.2006 12:11pm
Andy Freeman (mail):
> Did radio stations pull the Dixie Chicks because of popular outcry or because they wanted to look above board (or on board in the case of clear channel) when license granting time came around?

Like those are the only possibilities. (Note also the absence of any evidence supporting the "license granting" theory.)

One musician may have used opposition to that Dixie Chicks stance (which they defended and repeated - they only regretted that it upset people) to promote his career. His "they believe in that stuff, I don't" position made him more popular with some audiences and less popular with others.

Which audience is not entitled to vote with their wallets, ears, etc? Which radio stations are not entitled to act on that?
1.20.2006 12:12pm
Jim Hu:
Are there links for the claim that Clear Channel "wanted to express long-held support for/curry favor with a given political party"? It seems hard for me to believe that this was that useful to curry favor with the administration...it's not like this is going to help them get some favorable FCC rulings, is it? I'm sure that the GOP is much more interested in their campaign contributions than their going after an airhead singer.

By contrast, it makes more sense to me that Clear Channel would want to try to jump on the bandwagon of dislike of Maines from their listener demographic...in other words, there was probably sincere dislike for Maines' statements that was not held back by fear of losing any ad revenue or ratings by jumping on and hyping the controversy.
1.20.2006 12:15pm
rbj:
The Dixie Chicks imbroglio is hardly unique. John Lennon's inartful observation that the Beatles were bigger than Jesus brought widespread condemnation, radio station boycotts and record burnings.
1.20.2006 12:28pm
FreedomLover:
agree and disagree. With respect to Mr Glover, a celebrity actor, being hired to create a TV advert I agree. The company buying the advert is buying the use of the publics perception of Mr. Glover as an private individual. But with respect Mr. Penn losing an acting role, I think that neither makes good business sense or is ethical.

First, we pay to see Mr. Penn at the movies or, of for that matter, Mr. Clemmens at the ball park not because of who they are as private individuals, but because we want to buy the exceptional product of their craft. There are many entertainers with off-screen private lives and personalities that we would dislike, but that is irrelevant, as that is not what we are buying. We are buying what is on screen and on the field.

Second, again considering Mr Penn's case. He is an exceptionally worker who creates a product that has a high value for the employer for which he works. But he has beliefs that the employee may disagree with, but will have no impact on the quality of his product. Now lets say, we have Mr. Jones, a software developer, who is exceptional at system architecture design and has repeatedly helped his firm produce highly profitable products. How ever, it turns out that his employer is a devout Chritian and Mr. Jones is a practicing Muslim. The disagree on theology, which has no bearing on software development. So his employer considering his own beliefs and also the fact that most their customers are Christian, fires him. In my, if Mr. Penn lose a role because of poitical beliefs it is the equivalent of Mr. Jone losing his job as software architect because of religious ones. Freedom of speech. Freedom of religion.

I am not sure legally where these cases come down, but I think they are both unethical, and both counter productive for their respective employers.
1.20.2006 12:31pm
Justin (mail):
Or because the individuals making the decisions genuinely disagree with the ideas the artists express, and do not want to aid in their dissemination, or want to reduce their dissemination. They have to answer to their stockholders for potential dilution of thie quality and popularity of their product by not maximizing the appeal of the product they air, but it's not clear they have to answer to anyone else.


There are legitimate and serious conflicts between those two, ones that have made the morality of its legality, much less the idea of its constitutional requirement, of corporate campaign donations questionable.

There are three arguments for donating money. One is because, even expecting no favors, you agree with the person's speech and want to support it (the "speech" element of speech). This seems to be the "1st amendment" basis for donation protection, but it also clearly violate the corporation's fidelity of agency. So I think it should be pretty clear to all but the most partisan that corporations, without having the "trigger" that labor organizations have, do not have a constitutional right to donate money.

The second reason is because, while expecting no favors in return, is because you think his ideas are advantageous to your firm. This is the most common rationality for corporate donations, but it may violate the principle of "one person, one vote", and certainly does not have a speech element of its own (see above).

The third reason is because it wants to change the voting behavior of Congress or the administrative behavior of the President. This should be illegal, and perhaps already is, though is often defended under the useless guise of "access."

Going back to MDJD2B's point - if Clear Channel legitimately believed that Natalie Maines detracted from their bottom line, then they had not only the right but probably the obligation to stop playing her music. On the other hand, if Clear Channel did not believe this was the case, as MDJD2B seems to argue (if only hypothetically), they would violate their duty of fidelity/agency if they stopped playing Maines solely for their own moral/political benefit.

Yes, I know my argument equally applies to liberal uses of corporate money (like donating to the Sierra Club). Liberals have allowed this illusion to exist because they feel they are better off with the illusion that under the American corporate governance system government has an obligation to anyone other their shareholders, since the regulatory battle under the more honest reading is a loser to them. But that shouldn't prevent us from looking at what Clear Channel did with an objective eye.
1.20.2006 12:33pm
Justin (mail):
FreedomLover, while I think you certainly identify the grey line that is important to this discussion, I think that it's pretty clear that the software developer falls on one side of it, and almost as clear that Sean Penn (or, to show a more clear version, Brittany Speares, who has no "talent" as an actor that Jenna Jameson lacks) falls on the other.
1.20.2006 12:35pm
Inspector Callahan (mail):
Clear Channel's refusal to play the Dixie Chicks and some protests staged by businesses) are of the latter type... the economic harm is 1) intended as punishment, rather than being an indirect consequence how people feel about other people

And you gleaned this from Clear Channel's actions, exactly, how?

Clear Channel is a business. It's first priority is to its customers, the radio listener. If more people listened to Clear Channel based on Maines' statements, Clear Channel would not have made the move they did.

So this whole thought process is a straw-man from the word go.

TV (Harry)
1.20.2006 12:35pm
Justin (mail):
And to make one FINAL point, given my Brittany Speares contra Sean Penn example, is it any wonder our cultural dictionary includes the phrase "Brittany Speares Republican"?
1.20.2006 12:35pm
Bruce Wilder (www):
I kind of knew where this argument was going in the first paragraph, when the reference to the Dixie Chicks was followed by references, not to Clear Channel, but to "some stations".

My feeling is that very large organizations, like Clear Channel, should observe a norm of "common carrier" ethics. Those "common carrier" ethics should be strongest for the most powerful guardians of the media gateways. I don't want Dish Network or Time-Warner Cable offering channel space only to far-right religious broadcasters, while consigning progressive political channels to oblivion. Clear Channel, with its hundreds and hundreds of broadcast stations, billboards, and (formerly?) concert venues, should be held to a norm of neutrality.

Consumer sovereignty means nothing if choice is restricted by powerful gateway guardians.

If Clear Channel and other mega-corporations controlling huge swaths of the Media landscape cannot hold to a norm of neutrality, then the remedy is to destroy them thru slice-and-dice antitrust and FCC policy. If media giants prove that they cannot be trusted with great power, then their existence is incompatible with a free society, and, since I evidently have to choose, I choose a free society.
1.20.2006 12:42pm
Huggy (mail):
What would Bill Clinton do? Everybody involved stayed withing that benchmark.

The Chicks upset a large part of their market. New Coke anyone?

It's called politics. Seems even SCOTUS plays and is played by it. Everyone is shocked when it bites them in the butt.
1.20.2006 12:42pm
The Orginal TS (mail):
Of course, we're not dealing with First Amendement issues here but, rather, philosophical ones.

One approach is to simply divide things into voluntary and involuntary categories. Discrimination based on involuntary categories being forbidden and discrimination based on voluntary categories being allowed. For example, people don't choose their races so race-based discrimination should be forbidden. People do choose their political views so discrimination based on political views should be allowed.

I'm not entirely comfortable with this simple structure because there are certain "voluntary" areas in which it may well be in society's larger interest to prevent private discrimination, e.g. religion. The problem is that more and more groups want to squeeze in more and more topics under this heading. As Rehnquist (and Hans) pointed out, this is a growing problem. Played out to its ultimate conclusion, there are never any consequences for anyone's voluntary choices. I'm not comfortable with this, either. To take an extreme example (yet not far-fetched as I've actually heard this argument before) I think it would be a mistake to refuse to allow private actors to fire employees who choose to get multiple body piercings and tattoos. This is, indeed, an aspect of free speech, but free speech doesn't mean "free of consequences."

Justin raises an interesting point regarding private actors who, in effect, have a government monopoly. There are stronger and weaker forms of this. (In a sense, attorneys have a government monopoly.) But I think it deserves to be treated as a separate analytical category.
1.20.2006 12:44pm
Joshua (mail):
FreedomLover wrote:
Now lets say, we have Mr. Jones, a software developer, who is exceptional at system architecture design and has repeatedly helped his firm produce highly profitable products. How ever, it turns out that his employer is a devout Chritian and Mr. Jones is a practicing Muslim. The disagree on theology, which has no bearing on software development. So his employer considering his own beliefs and also the fact that most their customers are Christian, fires him. In my, if Mr. Penn lose a role because of poitical beliefs it is the equivalent of Mr. Jone losing his job as software architect because of religious ones. Freedom of speech. Freedom of religion.

Actually, your example is more about tolerance of speech/religion than freedom. Freedom of speech/religion means not being physically restrained from your speech/religion, or jailed or killed by government because of it. Tolerance means a lack of economic or social pressure against you by actors other than government viz. your speech/religion, which is what you're describing.

While it can certainly be argued that freedom of speech is devalued by a lack of tolerance of same (and indeed your point seems to be precisely that), it should be remembered that they are not one and the same.
1.20.2006 12:49pm
CJ:
I see nothing wrong with it. Welcome to the free market. We do as we want.

Dave Matthews--Gives to VPC/HCI gang. Doesn't get my money.
Leatherman--backed Kerry. Doesn't get my money.

etc.
1.20.2006 1:02pm
Andy Freeman (mail):
> We are buying what is on screen and on the field.

Since when do you get to make that call for me?

And, how are you going to enforce your decision? Are you going to force me to attend (or at least pay)? If not, are you going to compensate the vendor for the losses due to my boycott?

BTW - Sean Penn's speech doesn't deserve any more deference than Britney's.
1.20.2006 1:05pm
Robert Cote (mail) (www):
Why even call this "Economic Retaliation?" It's not as if you are taking something away or impeding the artists' other pursuits. Indeed, when we look at morals clauses we see that in some of these cases it is the artist promulgating out of the acceptable views who is sabotaging the value of the relationship. What is the old saying? Biting the hand that feeds you? What do we do with dogs that break the skin? We kill them. That's why we have very few instances of dog attacks. It is bred out. The economic equivalent needs to be allowed to work here.
1.20.2006 1:16pm
JohnAnnArbor:
Funny how boycotts and protests against conservative things like raising a confederate flag over South Carolina in 1962 to celebrate treason are called "unAmerican" and "harmful to the wrong people," but when the American Family Association advocates a protest against Ford Motor Co. (an American institution that is responsible for thousands of jobs and a major player in the American economy -- already teetering on the brink of collapse) beacuse of their stance on being supportive and, god-forbid, trying to sell their product to gay and lesbian people, conservatives call it "consumer activism" and a fawn over the power to hamstring American corporations they possess.

Um, the Democrats' choice to put the rebel flag up isn't the issue here. Wow, struck a nerve to get you so riled up and off-topic.

Go to an average college campus. Any leftist protest will be tolerated. Any non-leftist protest--say, an "affirmative action bake sale" MIGHT be tolerated. Or, it might be shut down by campus security after violent reactions by "tolerant" leftists.
1.20.2006 1:17pm
Smithy (mail):


I see nothing wrong with it. Welcome to the free market. We do as we want.


Ah, but the loony left hates the free market. That's why they didn't want us to go into Iraq and why there were apologists for the Soviet system for so long. It's why they whine about Wal-Mart and Exxon-Mobil.

I didn't know that about Dave Matthews. I used to be a fan of his...but not anymore. It's a shame that so many talented musicians hold such extreme left-wing views. I feel said sometimes that I can no longer listen to Bon Jovi or Bruce Springsteen without thinking of their moonbat, anti-American views.
1.20.2006 1:20pm
dweeb:
several problems here:

"my understanding is that many forms of retaliation to political speech (like Clear Channel's refusal to play the Dixie Chicks and some protests staged by businesses) are of the latter type. That type of retaliation is more troubling, because in that case the economic harm is 1) intended as punishment, rather than being an indirect consequence how people feel about other people,"

Or MAYBE, just maybe, Clear Channel got to their current position by having a knack for ANTICIPATING the reactions of their target audience, and not angering their audience with abortive trial and error flailing. The majority of country music fans are overwhelmingly conservative - it wouldn't take Nostradamus to read the writing on the wall and know that the target audience didn't want to hear the Dixie Chicks. The decision makers have stockholders alone to answer to, and those stockholders continue to employ them for their ability to pick what people are going to want to hear - if they lacked that ability, they wouldn't be in those jobs long.

"The second issue is that it sometimes is troubling when people react to a celebrity's political views strongly enough to change their consumer decisions. This is most obvious when they are overreacting in a way that is indicative of some kind of prejudice that is nearly as unfounded as racism. In this case, the newfound dislike of the entertainer (or even the conscious decision to boycott) based on the opinions they've expressed is analogous to a dislike of an entertainer (or even a conscious decision to boycott) based on nothing more than the person's race."

One major flaw in that - celebrities, like everyone else, CHOOSE their political views. Furthermore, as has been pointed out, a singer's fans hire the singer for her ability to carry a tune, not for her prowess at political philosophy. IF, at a paid event, she decides to subject paying ticket holders to her political diatribes, then she's changing the terms of the transaction. She'd holding herself out as a pundit. No one would question boycotting Rush Limbaugh for his views, because his views ARE his function. Maines took a career detour and made herself Rush's colleague. If these celebrities think their musical or acting talent makes them experts on world affairs, then what's wrong with seeing that as a two way relationship?
If your plumber, while he's fixing your sink, presumes to tell you how to raise your kids, and you think the advice is bad, you look for another plumber.


"We are buying what is on screen and on the field"

And no one put listening devices in Maines' home to catch her diatribes.

"exceptionally worker who creates a product that has a high value for the employer for which he works. But he has beliefs that the employee may disagree with, but will have no impact on the quality of his product. Now lets say, we have Mr. Jones, a software developer, who is exceptional at system architecture design and has repeatedly helped his firm produce highly profitable products. How ever, it turns out that his employer is a devout Chritian and Mr. Jones is a practicing Muslim. The disagree on theology, which has no bearing on software development. So his employer considering his own beliefs and also the fact that most their customers are Christian, fires him. In my, if Mr. Penn lose a role because of poitical beliefs it is the equivalent of Mr. Jone losing his job as software architect because of religious ones. Freedom of speech. Freedom of religion."

Mr. Jones' beliefs do not impact the saleability of the software he writes. In fact, the consumer need not know Mr. Jones exists. Mr. Penn IS the product.
The quality of his product is subjectively determined by the audience.
1.20.2006 1:25pm
P J Evans (mail):
I didn't know that about Dave Matthews. I used to be a fan of his...but not anymore. It's a shame that so many talented musicians hold such extreme left-wing views. I feel said sometimes that I can no longer listen to Bon Jovi or Bruce Springsteen without thinking of their moonbat, anti-American views.

As opposed to say, Fox News and its very-much-rightwing views? Sauce for the goose, sauce for the gander.
If you don't like what someone says in a commercial forum, don't buy their work. And don't expect everyone else to agree with you.
1.20.2006 1:28pm
Freder Frederson (mail):
BTW - Sean Penn's speech doesn't deserve any more deference than Britney's.

Yes, it does. Sean Penn is objectively more talented and intelligent than that no-talent moron Britney. To say that anyone should pay attention to anything that Britney Spears says or does, either politically or artistically (and I use that phrase loosely) means that there is absolutely no objective standard of intelligence or talent in the world.

My feeling is that very large organizations, like Clear Channel, should observe a norm of "common carrier" ethics. Those "common carrier" ethics should be strongest for the most powerful guardians of the media gateways.

It's not that Clear Channel should observe some theoretical ethics, they are legally obligated to serve the public interest. As much as it has been watered down over the last twenty-five years since the fairness doctrine was thrown out the fact remains that all broadcasters get to use the airwaves for free in exchange for serving the public interest. At the very least, they have a legal responsibilty not to use their market power to advance their political agenda, which they undoubtedly did in the Dixie Chicks case, where they orchestrated the outrage and encouraged and organized the CD destruction and whipped up the public sentiment against the Chicks. I doubt there was a more outrageous misuse of the media by a content provider since Hearst (along with Howard Hughes) whipped up anti-Japanese hysteria on the West Coast after the outbreak of World War II.
1.20.2006 1:32pm
KMAJ (mail):
It really is not as complicated or conspiracy laden as some like to purport. Freedom of speech does not mean a freedom to be heard or a freedom from negative reactions for exercising that right. Country music plays to a conservative audience, when the media played up her comments, it caused an uprorar, country music stations listen to their sudience, it was a marketing decision, pure and simple. Because you record a song does not guarantee any right it has to be played. The ignorance was on Natalie Maines' part in not knowing her overall audience or underestimating their negative reaction, she destroyed her own career, at least so far, she has been a flop in the pop world.

This is not a free speech issue at all, those arguing otherwise are arguing against accepting personal responsibility for the consequences of one's own actions. If the free speech one engages in makes that person less attractive as a speaker or spokesperson, or causes stations that play their music to lose audience, the station has the right and responsibility to maintain its audience, these negative effects on the exerciser of free speech is their own fault, and no one elses.
1.20.2006 1:33pm
Freder Frederson (mail):
Bon Jovi or Bruce Springsteen without thinking of their moonbat, anti-American views. Bruce Springsteen without thinking of their moonbat, anti-American views.

So because Bon Jovi and Bruce Springsteen believe in the kind of society they were raised in. One where hard-working blue collar people earned living wages because they were protected by unions; and they see a society that has become uncaring and unconcerned about the working classes you consider that "moonbat" and "anti-American".
1.20.2006 1:37pm
Jim Rhoads (mail):
Somehow, I can't get exercised about a celebrity's views on things like political views or social mores. I think they should keep their views to themselves during their performances and public appearances. But if they support candidates I oppose, or oppose political views I support and are not obnoxious about it, it has little influence on my opinions on those issues, and does not color my opinion on their talent or lack of it in their field.

It seems to me that businesses who hire an individual for his/her public persona's influence on a demographic are entitled to fire that individual if that persona changes in such a way to be less influential to the selected demographic.

Likewise, public people should understand that all of their audiences are as tolerant as I am toward their political views in this time of political polarization.
1.20.2006 1:39pm
Gabriel Rossman (www):
The Dixie Chicks boycott was not started by Clear Channel (or any other big corporation). It appears that radio stations responded to grassroots pressure to blacklist the singers. Please see my peer-reviewed paper on the subject.
1.20.2006 1:39pm
Smithy (mail):
I know a lot of people who were Dixie Chick fans before the Chicks started, in effect, supporting Saddam. Not too many of them are fans anymore. Clear Channel was simply responding to complaints from listeners. Clear Channel is a business and that's what businesses do -- respond to customer's wishes. The far left just doesn't get that.
1.20.2006 1:43pm
Freder Frederson (mail):
Country music plays to a conservative audience, when the media played up her comments, it caused an uprorar, country music stations listen to their sudience, it was a marketing decision, pure and simple.

Nonsense, Clear Channel whipped up the public, pure and simple. I lived in Kansas City at the time. It has two country stations, one Clear Channel, one not. The Clear Channel station stopped playing the Dixie Chicks because they claimed that they were responding to "overwhelming" listener outrage. The other station did not stop playing the Dixie Chicks and said that they received more calls in support of the Dixie Chicks than against. The demographics of the two stations were not different, their playlists were almost identical. Somebody was lying and I doubt it was the station that continued to play the Dixie Chicks.

I am a raving liberal and I listen to country music all the time.
1.20.2006 1:44pm
Smithy (mail):
Freder, people like you are free to boycott Toby Keith and Lee Greenwood if you like. I don't think you'll get far, though.
1.20.2006 1:48pm
Jeek:
Sean Penn is objectively more talented and intelligent than that no-talent moron Britney. To say that anyone should pay attention to anything that Britney Spears says or does, either politically or artistically (and I use that phrase loosely) means that there is absolutely no objective standard of intelligence or talent in the world.

Even if one agrees that there is an "objective standard" for artistic talent - let alone intelligence - it does not follow that the person with "more" intelligence or artistic talent will necessarily have more worthwhile political opinions. Mel Gibson is a hell of an actor, but his political views are infantile. Heisenberg was a very intelligent man and a great physicist, but his political views were, uh, not progressive. Heidegger, same problem, very talented philosopher and very intelligent, but with problematic political views.
1.20.2006 1:51pm
Gabriel Rossman (www):
freder,

Overall Clear Channel stations kept playing the Dixie Chicks longer than anybody. What stations are you thinking of? In my data, there were three country stations in KC in Spring of 2003, and none of them were owned by Clear Channel.
1.20.2006 1:54pm
Freder Frederson (mail):
I never said intelligence necessarily led to enlightened political views, but lack of intelligence never does. And that is Britney's problem, she lacks both intelligence and talent.
1.20.2006 1:56pm
Quarterican (mail):
I agree with those who've pointed out that Clear Channel is, for all intents and purposes, commercial radio in the United States, and while I don't know whether that made their actions legally questionable, I do think it made them ethically questionable. I'm not disputing their right to do what they did, but it's of a different character than the MCI/Danny Glover situation.

I have to get on the side of Britney in her mock debate with Sean Penn; when it comes to politics, they're both amateurs by definition, and you'll find plenty of people to say that both of them are horrifically un- and mis- informed. So even if Mr. Penn is more talented, that doesn't buy him real credibility; academically-inclined intelligence is not a necessary condition for skill as an actor (although it might be for an actor playing a role which is supposed to be intelligent).

I must say I've always been weirded out by people who boycott artists on the basis of political disagreement (as opposed to, say, the basis of their art or their art's political content). I adored Mark Helprin's Memoir From Antproof Case and didn't stop adoring it when I found out about his political writing. I'd never deny myself the pleasure of Merle Haggard because he wrote "Okie From Muskogee" (and I don't listen to that song because I think it's just bad, not because I disagree with its politics). I could only imagine avoiding an artist's work if I thought their position was actually morally bad (and even so, I enjoy Eliot and Wagner despite their famous anti-Semitism). I suppose you can think Springsteen is anti-American if you want (though I couldn't disagree more) but if you think he's an evil person, all I can say is: wow.
1.20.2006 1:56pm
eddie (mail):
I welcome anyone on this post to describe the following:

1. Moderate centrist views
2. Moderate right views
3. Moderate left views
4. Extreme right views
5. Extreme left views

Personally my ears are tired from all of the screaming.

The real myth is that there is a "free" market. This is a construct that envisions rugged individuals crafting value added products, bringing them into the public square and the best products winning.

Just isn't that way anymore.

The issues brought up here are much more complex than simple legal/constitutional issues. I agree with one commentor's statement that antitrust is involved. And what about the fact that radio stations use "public" airways that are licensed by the U.S. government?

Of course, one must own one's own opinions, but then stop all of this free market crap. Let's say that I actually have the best widget, but am a neo nazi. Will the market place decide the most efficient and best answer? What if I make an inferior product, but am a devout christian, will the market reward me for my wares or my beliefs.

This has nothing to do with the Constitution and mostly to do with free market capitalism.

The problem is that free market capitalism is inherently amoral and yet defenders of the market cling to some delusion that this is the only "system" that is compatible with democracy and God's will. I will not give my opinion on the matter (since it will invite moral condemnation). This is not an ethical issue either, since making money has nothing to do with ethics.

The other hidden issue is how much should the bill of rights apply to corporate entities, if at all?

But these are hard questions in the real world, because you gotta make a buck and if you are critical of the very system that allows you to make a buck . . .
1.20.2006 1:59pm
Smithy (mail):
I'd never deny myself the pleasure of Merle Haggard because he wrote "Okie From Muskogee" (and I don't listen to that song because I think it's just bad, not because I disagree with its politics).

That song is a satire, as Merle admits. Can't you tell?
1.20.2006 2:02pm
Pete Guither (mail) (www):
Keep in mind that many boycotts or protests backfire. As a person involved in the arts, I love it when offended groups protest a piece of art or theatre -- we get tons of publicity, and everybody comes to see what the fuss was about. If there's pickets, that's even better -- we call the media and make sure they know about it.

And obviously, the entertainment industry knows this as well. Films like "Last Temptation..." and "Passion..." played it up big.

This can even be true to some extent for celebrities. Sure, there's a risk that you'll turn people off, but there's also the fact that you get visibility and publicity (almost always good for a celeb).

And if you care about an issue and want to make a difference, you trade your power for the ability to reach people. Lots of entertainers do this -- Tim Robbins, Bill O'Reilly, Pat Robertson, Sean Penn, Rush Limbaugh, Ann Coulter, Barbara Streisand, Geraldo River... and the list goes on.
1.20.2006 2:02pm
Bob Bobstein (mail):
The (Brian-less) Beach Boys performed Okie from Muskogee in NYC in a surprise appearance during a Dead show in NY in 1971 or 1972.
1.20.2006 2:07pm
Quarterican (mail):
That song is a satire, as Merle admits. Can't you tell?

Didn't know he'd said so. I guess in some of the sillier lyrics I can hear it, but the only copy I have available is on the live album of the same name; I don't think he presents it to the crowd as a satire, and I don't think that's how they receive it, which may have colored my attitude. (The liners to the album certainly take it at face value.)
1.20.2006 2:14pm
Jeek:
I never said intelligence necessarily led to enlightened political views, but lack of intelligence never does.

And thus Cindy Sheehan should shut up and go away?
1.20.2006 2:17pm
farmer56 (mail):
The Dixie Chicks are a product. Being sold to the people. Not a single soul is 'required' to buy the product. Radio stations sell their format.. To garner more listners than their fellow stations. If, the station understands it will lose listeners, thus, advertisers, thus, income, this is not a free speech issue, but a free market issue.
1.20.2006 2:49pm
Hei Lun Chan (mail) (www):
At the time Maines was in the news, the Dixie Chicks had "Landslide" on the pop charts, and pretty much all the pop stations at the time, even the ones owned by Clear Channel, kept playing the song.
1.20.2006 3:05pm
Justin (mail):
First of all, thanks for everyone focusing on the least important part of what I had to say.

Second of all,

"BTW - Sean Penn's speech doesn't deserve any more deference than Britney's."

Misses the point. The point isn't that Sean Penn's opinions are more worthwhile. It's that Sean Penn's value as an actor relies more on his actual talent as an actor (in the same way a good lawyer makes money on his talent, or a good computer scientest makes money on his talent), whereas an "actor" like Speares relies entirely on her public persona. While Sean Penn movies draw people because they know Sean Penn can do a rock solid job, people see Speares movies for - different reasons.
1.20.2006 4:02pm
Justin (mail):
To put it in other terms, when Eugene Volokh says:

People go to movies largely because they like the stars' work, but also because they like the stars or at least like the image that the stars project; the same is true for musicians. That's a big part of why entertainers have publicists.

I think when it comes to Susan Sarandon, he's just not correct. Susan Sarandom does not rely on her image to any significant degree, Sean Penn may to some degree, but its hardly a "big part". Matthew McConoghoue (sp) or Harrison Ford does to a larger degree. Brittany Speares relies entirely on image.
1.20.2006 4:05pm
Justin (mail):
PS Most of the old school country stars - Cash, Haggard, Nelson, Sam Bush - are raging liberals. Several of these spoke out against the President in no uncertain terms (not sure about Cash, given his health before dying). Clear Country couldn't "not" play those - so at least to some degree, talent does shine through.

Unfortunately for people of all political stripes, Clear Channel is in the payola game, and there's just no money in playing good, unadulterated music - be it classics or indie.
1.20.2006 4:09pm
Fishbane (mail):
But something that I have wondered about "the marketplace of ideas" from a legal theory standpoint is the following: if it really is a "marketplace," shouldn't there be some sort of lemon law for failed speech?

The problem with that notion is that someone has to decide what "failed speech" means, and when some particular instance of speech has "failed". I don't know about you, but the only person I trust to make that determination is myself. Seeing as how I believe I'm the only person on the planet to decide, and seeing as how I have the impression that at least a large majority of other people would tend to disagree with me about that, I see no reasonable way to make a rule about "failed speech".
1.20.2006 4:18pm
Andy Freeman (mail):
> The point isn't that Sean Penn's opinions are more worthwhile. It's that Sean Penn's value as an actor relies more on his actual talent as an actor

And it's still irrelevant wrt the deference we give his speech.

> And that is Britney's problem, she lacks both intelligence and talent.

She's managed to get where she wanted to be.
1.20.2006 5:18pm
Andy Freeman (mail):
> Nonsense, Clear Channel whipped up the public, pure and simple.

Even if true, so what? They're entitled to express an opinion.

Moreover, unlike PBS, they're doing it on their nickle. (They don't rely on deductible contributions, they pay taxes on income, etc.)

The Clear Channel/Dixie Chicks/Britney Spears complaints all have more than a touch of the "it's the wrong speech". You folks might want to work on that.
1.20.2006 5:28pm
Hattio (mail):
Since when is Sam Bush old country?
1.20.2006 5:35pm
CJColucci (mail):
Since the piece was a law review article -- and, again, I ask why? -- the legal answer is simple: private entities can do what they damn please. As Yogi Berra once said, "If people don't want to come to the ballpark, you can't stop them."
If people want to get hot and bothered about celebrity politics, and not patronize or air certain celebrities, they have that right. They also have the right not to patronize a grocer or car dealer whose politics they object to.
But most consumers don't know and wouldn't care about the politics of the grocer or car dealer. And large numbers of us don't care about the politics of celebrities or artists. When Clear Channel decides, either on its own or in response to noisy listeners, to keep the Dixie Chicks off the air, those of us who neither know nor care about their politics lose access to music we like. Nothing to be done about it, but the apathetic (and, I suggest, properly apathetic) majority gets screwed.
1.20.2006 5:56pm
Mac (mail):
I recall, not long ago, PBS which receives tax dollars besides getting tax deductible contributions, was in the rather amazing position of vigorously defending it's right to not provide fair and balanced programming and, by George, no one could make them do it! Also,
does no one remember John Kerry's front man threatening Sinclair Broadcasting with pulling their license if they showed the Swift Boat Vet's tape? If they won the election, of course. The free speach advocates who are so vocal about poor Sean Penn and the Dixie Chicks were strangely quiet about that even though it would involve the Government prohibiting freedom of speech and freedom of the press.
Freder, there may be more "politically enlightened" people in the world if a liberal could ever make an argument based on real facts as opposed to made up ones. Still waiting for your response to Rossman's statement that were 3 country music stations in KC during 2003 and none were owned by Clear Channel.
1.20.2006 6:04pm
minnie:
But are economic retaliation and calls for retaliation proper, or should we develop social norms against them? This, it seems to me, is a hard question...

This has to be one of the most bizarre statements ever written by an otherwise intelligent person. Why would this be a "hard" question? It's about as hard as "Do cows have wings"?

Of course individuals and private companies should be allowed to do whatever they want when it comes to economic retaliations against individuals whose moral stances they find objectionable. It's called capitalism. It's called being able to act freely without government interference in accordance with one's morality. If you own a private business, your business cannot be an expression of your morality? Incorporating now means you are forced to abandon your moral positions?

Now please explain, Eugene, how exactly you suggest, should some so desire, we develop "social norms", whatever that means, against such activity?

Have Congress or various states pass laws, and have cases brought to the Supreme Court, and have Scalia and Alito, who would no doubt find this a "hard question" as you seem to do, weigh in? Or take a gentler approach, and put people who urge others not to go to Mr. X's concert in a corner and deprive them of food and water?

I await your answer.

Things are sure getting curious and curiouser.

Sign me,
Alice, in Wonderland.
1.20.2006 8:17pm
minnie:
CJCOLUCCI: I agree with most of your post, but disagree with your statement that there is nothing to be done about it. Listen to another channel. Start a new one that plays the music of those you like.

Disagree also that the majority gets "screwed." There is a pejorative connotation to "screwed" that is not applicable. The public is not entitled to any particular entertainment. There are abundant choices, thanks to the fact that we live in a society that is still somewhat capitalistic, and if a market develops for a station that plays the music of activist entertainers of one or another political point of view, rest assured such a station will be available before long. If not, that's life. The Edsel had some good features also.
1.20.2006 8:34pm
Smithy (mail):
Also, does no one remember John Kerry's front man threatening Sinclair Broadcasting with pulling their license if they showed the Swift Boat Vet's tape?

I remember it well. And yet no one compared Kerry's front man, who I believe was either James Carville or George Stephanpolous, to McCarthy. As I recall, Stephanopolous, in particular, used his Sunday morning show as a bully pulpit to berate Sinclair. Ultimately, Sinclair gave into the bullying from the liberal MSM and did not air the award-winning documentary on the Swift Boat Veterans it had been planning to run.

And no one complaine of "censorship" in this instance. Why is that, I wonder?
1.20.2006 9:29pm
C.J.Colucci (mail):
Is starting my own station really an alternative? Most of us (at least those of us too old for internet file sharing and i-pods) don't even know what music is out there unless some radio station plays it. Those of us, the vast majority, who don't care about the politics of entertainers, would like to be assured that the conduits through which music, for example, comes to our attention stick to their knitting and simply give us music we might like. When the conduits, the Clear Channels of the world, deny us certain music for reasons most of us listeners don't care about, we lose. And it is unlikely that other stations will pick up the slack. Few listening areas can support multiple stations with similar formats: you can't gin up a second country music station in New York City if the only reason for your existence is to offer the handful of artists that the established station won't play. The idea of a Dixie Chick channel, or a Springsteen channel, or even a Sinatra channel just doesn't work because no single artist is that important to anyone's playlist. And the idea of a "let's play blacklisted artists" channel makes even less sense as a format. Again, there's no legal or other solution to this problem. It's just another example of the squeaky wheel getting greased and the rest of us getting stuck.
1.22.2006 9:20pm
dweeb:
"So even if Mr. Penn is more talented, that doesn't buy him real credibility; academically-inclined intelligence is not a necessary condition for skill as an actor (although it might be for an actor playing a role which is supposed to be intelligent)."

Like, say, Spicoli in "Fast Times at Ridgemont High?"

Interesting bit of trivia here - Martin Sheen, who's been known to tell the director of "West Wing" that he wouldn't make it to the set on Monday because he intended to get arrested in an anti-war protest over the weekend, was asked how he felt about this issue. He said he hoped he had lost roles over his outspoken political views, because convictions were shallow and meaningless if they didn't cost you something. If Maines doesn't believe in her own position enough to take a 10% hit to her multimillion dollar income over it, why should she expect people in less comfortable circumstances to go out on a limb with her?
1.24.2006 1:25pm