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.

As promised, here's 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. Last week, I blogged excerpts on economic retaliation against speakers who are entertainers; next week, I'll probably blog excerpts on economic retaliation against "ordinary employees," who are neither entertainers nor commentators:

Six days after the September 11 attacks, Bill Maher, host of the TV show Politically Incorrect, was discussing the oft-repeated claim that the terrorists were cowards. Not so, Maher said, agreeing with one of his guests, conservative commentator Dinesh D'Souza. Maher went on:

But also, we should—we have been the cowards lobbing cruise missiles from 2,000 miles away. That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly. You're right.

This won Maher no friends. Several stations pulled his show briefly. Nine months later, the show was canceled, possibly partly because of this incident. And responding to the Maher incident, then-White House spokesman Ari Fleischer famously said that "all Americans . . . need to watch what they say, watch what they do." Fleischer almost certainly wasn't threatening legal retaliation against Maher—but I suspect that he welcomed the outcry against Maher's remarks and the nongovernmental retaliation that Maher faced.

Yet of course commentators have long known that they "need to watch what they say" on television or in print. Their employers, after all, are watching what the commentators say. The employers rightly want to avoid using their networks and their newspapers to spread ideas that they strongly disapprove of.

The employers may be quite willing to carry some views that differ from their own; even newspapers with clear editorial policies may want to have a mix of views on their op-ed page. But some views doesn't equal all views. Few media outlets want to carry—and place their own imprimatur on—all possible views, no matter how rude, despicable, or foolish the views may be. And of course the public also watches what commentators say, and the employers watch what the public thinks.

Certainly the experience of Jimmy "the Greek" Snyder, a CBS commentator fired for making racially offensive statements in a TV interview, made this clear. (Snyder's comments weren't explicitly anti-black—he condemned white athletes, not black ones—but they were seen as offensive chiefly because they asserted that blacks' athletic ability flows largely from slavery-era breeding practices.) Those who needed more evidence that commentators "need to watch what they say" got it when CBS News suspended Andy Rooney for allegedly remarking in a magazine interview that "most people are born with equal intelligence, but blacks have watered down their genes because the less intelligent ones are the ones that have the most children. They drop out of school early, do drugs and get pregnant."CBS rightly didn't want to be seen as approving such views, and thus the network took steps to dissociate itself from those who promoted them.

Ari Fleischer's remarks, in fact, criticized ethnic prejudice as well as perceived contempt for our soldiers. On September 17, 2001, Representative John Cooksey said in a radio interview, "If I see someone that comes [into an airport] that has a diaper on his head and a fan belt wrapped around the diaper on his head, that guy needs to be pulled over and checked." At a briefing a week later, a journalist questioned Fleischer about Cooksey's statement, asking whether the president had a message for "members of his party . . . about this issue" of anti-Arab speech. Fleischer said that the president was disturbed by Cooksey's remarks; and then, a few questions later, Fleischer again condemned Cooksey, at the same time as he condemned Maher:

[QUESTION:] As Commander-in-Chief, what was the President's reaction to television's Bill Maher, in his announcement that members of our armed forces who deal with missiles are cowards, while the armed terrorists who killed 6,000 unarmed are not cowards, for which Maher was briefly moved off a Washington television station? . . . .

MR. FLEISCHER: I'm aware of the press reports about what he said. I have not seen the actual transcript of the show itself. But assuming the press reports are right, it's a terrible thing to say, and [it's] unfortunate. And that's why—there was an earlier question about has the President said anything to people in his own party— they're reminders to all Americans that they need to watch what they say, watch what they do. This is not a time for remarks like that; there never is.

Now as it happens, Fleischer may have erred in relying on press reports, if those reports tracked the questioner's characterization of Maher's statement. Maher didn't condemn the "members of our armed forces who deal with missiles" as cowards. He said that we are cowards, and, in context, it seems likelier that he was condemning our then-existing practice— i.e., the country's practice—of fighting terrorists using missiles rather than ground troops. Maher, I think, got a bum rap for what he said; in the tense and emotional time following the attacks, his remarks were misinterpreted.

But other people did not get a bum rap. New York Times editorial cartoonist Ted Rall was rightly condemned for a cartoon that cruelly mocked the widows of those killed on September 11 and the widow of Daniel Pearl, the murdered Wall Street Journal reporter. The Times and other papers pulled that particular cartoon, and properly so. If I were an editor, I wouldn't run Rall's cartoons at all, given the nastiness he has proved himself capable of. This editorial decision is no more reminiscent of the "House Un-American Activities Committee" than is the firing of Snyder. Newspapers and TV networks are entitled not to carry views and speakers that they find contemptible.

A year later, MSNBC talk-show host Michael Savage got what he deserved, too. Responding to an insult from a caller, he asked whether the caller was "one of those sodomists"; when the man said yes, Savage said, "You should only get AIDS and die, you pig." MSNBC promptly fired him, and rightly so. Do such firings make commentators "watch what they say"? You bet. Yet media outlets such as MSNBC are nonetheless entitled to refuse to carry speech that they find repugnant.