Home -> Law Blog Directory -> Administrative Law Blogs -> Within the Scope

Administrative Law

: Within the Scope

Free Speech and Free Markets: Where Should They Cross?

By Eric L. Lipman

Last week, Professor Eugene Volokh made a post to his blog The Volokh Conspiracy that had me thinking. The post equated the controversy that is now swirling around Scott Eckern, the former artistic director of the California Musical Theater, with the fracas that Dixie Chicks lead singer Natalie Maines faced in 2003.

As the readers of these pages will recall, Mr. Eckern resigned his position with the Theater last Wednesday, after news of his $1,000 contribution to the ?Yes on 8 Campaign? became public. The ?Yes on 8 Campaign? spearheaded the successful referendum to add the words ?only marriage between a man and a woman is valid or recognized in California? to the California State Constitution. California law obliged Mr. Eckern to disclose his name and employer along with such a contribution to the referendum committee. When news of Mr. Eckern?s contribution was posted on several blogs after Election Day, a cadre of performers and writers threatened to boycott the California Musical Theatre for as a long as Eckern continued to work there.

Professor Volokh recalls that in March of 2003, the Dixie Chicks faced their own firestorm. The group's lead singer, Maines, told a London concert audience, ?Just so you know, we're ashamed the president of the United States is from Texas;? a remark that sparked a round of boycotts against the Dixie Chicks? recordings and concert dates. Notes Volokh, the threatened boycott of the California Musical Theater ?helps provide a counterpoint to the criticism of people and organizations [that] boycotted the Dixie Chicks for their statements.?

Moral equivalence? Perhaps. But are theater director Eckern, and the pop star Maines, really flip sides of the same coin? Or do the differences in their respective notoriety (and, presumably, the size of their 401(k) plans), make the two boycotts different? Similarly, is the content of their respective speech a reason to link the two boycotts together or to distinguish among them? And is either embargo an example of how free markets should operate?

As thought-provoking, Eckern?s experience has prompted Scott Parnell, President of the Alexandria-based Center for Competitive Politics, to call for the elimination of all laws requiring the disclosure of campaign contributions to ballot initiative committees. Argues Parnell, in his essay here, the required disclosure of contributions, meant to combat corruption, can too easily be retooled as a list of targets for those who are angry after Election Day. Says Parnell, ?disclosure of donors stifles citizen voices and exposes donors to retribution from those who do not share their beliefs, and should be ended.?

When thinking about where the right dividing line should be, I have taken Professor Volokh up on one more invitation ? namely, to spend time with his 2005 article Deterring Speech: When Is It ?McCarthyism?? When Is It Proper?, which is accessible here.

Full post as published by Within the Scope on November 17, 2008 (boomark / email).