By MICHAEL C. DORF
Monday, Apr. 23, 2007
In the popular debate over the decision of CBS and MSNBC to fire Don Imus, libertarians have occasionally invoked the First Amendment in Imus's defense. Others have responded that CBS and MSNBC did not violate the First Amendment, because the First Amendment does not apply to private corporations.
The response is correct as a technical matter. With the exception of the Thirteenth Amendment's prohibition on slavery, the Constitution only restricts government. But the libertarians are also correct, at least if we understand their point loosely.
We have a First Amendment because we value freedom of speech (as well as freedom of the press and of religious conscience). As experience under totalitarian regimes demonstrates, government censorship poses by far the greatest threat to free expression.
However, private conduct can also threaten freedom of speech, and when it does, those who value free speech are right to worry. In this column, I argue that the sort of "secondary boycott" that resulted in the dismissal of Imus poses a serious threat to the spirit of the First Amendment.
Although the damage has already been done to Imus and his listeners, it is not too late for free expression more broadly. Boycotts have been threatened against the sponsors of Rosie O'Donnell, Al Sharpton, various rap musicians, and others. Whatever one thinks about the views of such speakers, free speech itself will be the loser if Americans embark upon a series of boycotts and counter-boycotts.
Free Speech Includes Freedom to Offend
Although it should hardly be necessary, I'll begin with a disclaimer. I found Imus's racist and sexist remarks about the Rutgers women's basketball team deeply offensive, both as a citizen and as a former member of the Rutgers faculty. I am sure that I would have also been offended by his numerous racist, sexist, homophobic, and anti-Semitic statements over the years had I ever listened to his show.
Accordingly, I have no personal stake in the Imus case.
But of course free speech means free speech for everyone, whether you agree or disagree with the message. Indeed, some of the most important Supreme Court decisions protecting free speech have featured unpopular speakers with offensive messages. For example, the leading decision establishing a right to avoid prosecution for mere advocacy, the 1969 ruling in Brandenburg v. Ohio, invalidated the conviction of a Ku Klux Klan leader who had presided over a cross-burning at which racist and anti-Semitic statements were made.
Likewise, many patriotic Americans find the deliberate burning of a U.S. flag deeply offensive. Yet, as the Supreme Court explained in its 1989 decision in Texas v. Johnson, mere offense does not warrant censorship. As Justice Brennan explained in his opinion for a majority of the Court: "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong."
Does the Dismissal of Imus Constitute "More Speech?"
That point was put most eloquently by Justice Brandeis in a concurrence in the 1927 case of Whitney v. California. He wrote "that the fitting remedy for evil counsels is good ones."
Ay, there's the rub, say those who applaud the decisions of CBS and MSNBC. These erstwhile Imus employers were persuaded to fire him by the good speech of those offended by Imus's bad speech. That's the marketplace of ideas in action, isn't it?
No, it isn't. The Brandeisian maxim would counsel CBS and MSNBC's allowing those who oppose racism and sexism to address their pro-equality message to Imus's listeners, in an effort to persuade them that their message is more valuable than Imus's message. Instead, those who objected to Imus's comments coerced CBS and MSNBC--and the corporate sponsors of "Imus in the Morning"--to silence Imus.
The Secondary Boycott Analogy: Going After Imus's Sponsors
Federal antitrust and labor law provide a useful parallel. For the most part, unionized workers have the right to strike against employers over wages and working conditions. However, federal law also prohibits most "secondary boycotts."
What is a secondary boycott? An example illustrates the concept. Suppose that contract negotiations between an apparel manufacturer and its union have stalled. If the union strikes against the manufacturer, that is a primary boycott. But suppose that the union wants to increase its leverage against the manufacturer. It might picket or otherwise target companies that do business with the manufacturer, such as retail stores that sell the manufacturer's brand of clothes. That would be a secondary boycott.
The law generally forbids secondary boycotts because they can be unduly coercive. When workers strike against their own employer, they are exercising their right to withhold their labor. But when they strike against third parties, they target entities that have no direct stake in the underlying dispute.
Moreover, there is no logical stopping point to a secondary boycott. Why not also strike against those who do business with those who do business with the offending employer? The logic of the secondary boycott soon leads to tertiary boycotts, quaternary boycotts, and pretty soon to a general strike that shuts down the entire economy.
Why the Secondary Boycott of Imus is Especially Troubling
Imus was dismissed because of the perceived threat of a secondary boycott. People offended by Imus's speech threatened to stop buying products sold by companies that purchased commercial advertising time on his show--purely and solely because those advertisers were doing business with Imus. (Or at least, that's what the advertisers understood. To the extent that the advertisers and networks acted precipitously, however, they were undoubtedly anticipating a secondary boycott.)
To be sure, the legal prohibition of secondary boycotts does not apply to everyone. It is a rule that is peculiar to the labor context. Should its logic be extended to cover the Imus case? That might depend on whether one thinks the secondary boycott prohibition is appropriate even in the labor area.
As it happens, the prohibition of secondary boycotts is controversial even in the labor setting, because it often implicates the right of free speech. Some labor law scholars distinguish between coercive boycotts and persuasive ones. For example, based on what they learn from union activities, customers of a large retailer may not wish to purchase goods from a store that is supplied by sweatshop labor. Prohibiting secondary picketing under such circumstances looks a lot like prohibiting the union's ability to speak to and persuade customers.
But even if one thinks that labor law unduly restricts secondary boycotts, one should still be especially worried about the secondary boycott in the Imus case. The workers striking against my hypothetical garment manufacturer and clothing retailer object to ordinary business practices that have no special place in our constitutional order--the paying of allegedly substandard wages, for example.
By contrast, the people who (implicitly) threatened not to purchase goods and services from the companies that advertised on "Imus in the Morning" were themselves opposed to speech. At bottom, they wanted to use their power in the ordinary market for goods and services to shut down what they deemed an offensive transaction between a speaker and willing listeners in the marketplace of ideas. Thus, far from undercutting the rationale for prohibiting secondary boycotts, in the Imus case, the principle of free speech lends force to that rationale.
Government Action Formalism
To be clear, I do not contend that the law does or should prohibit people who are offended by a speaker's offensive statements from urging the speaker's employer to take away his microphone. The employer itself has a right of free speech, and by analogy to the argument we considered in the labor context, third parties might persuade the employer that it does not want the speaker's message to reflect on the employer itself. Such persuasion, as opposed to coercion, would--like a primary boycott--be legitimate.
Furthermore, a legal prohibition on secondary boycotts beyond the labor context would be impossible to enforce, except at great cost to free speech itself. Law enforcement authorities could hardly track down, much less prosecute, everybody who refused to purchase goods or services from the sponsors of a targeted speaker, while prosecuting the organizers of such a boycott would infringe their free speech rights.
But the fact that the law should not intervene to stop secondary boycotts targeted at offensive speakers does not mean that such boycotts pose no threat to free speech. In fact, they pose a very serious threat.
Ours is a diverse society, in which many of us find the speech of others offensive. The standard and sensible approach of those who find someone else's message offensive is to change the channel. Once secondary boycotts become the rule, however, the likely result will be reluctance on the part of commercial advertisers to sponsor any but the most bland fare. Arguably, we have already moved too far in that direction.
Nor do subscription services like HBO and satellite radio provide a complete answer to secondary boycotts, because millions of people cannot afford to, or simply choose not to, purchase these services. Meanwhile, Internet-based alternatives are themselves heavily dependent on commercial advertising for their revenue--and thus are also vulnerable to secondary boycotts.
At bottom, the secondary boycott of Imus and the threatened boycott of others indicate a failure of our constitutional culture. Thus it may be worth recalling the words of the great federal judge Learned Hand. Hand was, in my view, unduly pessimistic about the power of courts to affect social change. But he was undoubtedly right about the big picture when he famously wrote: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."
Or, to put the point less eloquently, if you don't like what you hear, just change the channel.
Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.