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: