Wednesday, December 17, 2014

Black List Down

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Twenty-nine states have enacted statutes against blacklisting. Each and every one of them restrains employers from preventing former employees from being hired elsewhere. Each and every one of them owes its pedigree to anti-conspiracy jurisprudence. The economics are easy enough to understand: blacklists destroy the implicit wealth of targeted individuals, obliging them to accept lower wages at no substantial cost to the conspirators. If you're a regular reader, you should instantly pick up on the BATNA disparity tucked neatly away there. If you're an employer, workers are easy enough to replace (or so goes the legislative intuition), but if you're a worker, you could be completely barred from your profession. Yikes!

As you know, the Supreme Court has roundly rejected prior restraint.

These 29 legislatures, in an uncommon fit of forward induction, have therefore been sharp enough to limit blacklisting bans to actual employers, and not to private citizens. Walter Sobchak is still at liberty to carefully write down the names of everyone who's offended him and publish it in the local paper. He might still be liable under defamation statutes, depending on what else he writes, but unless he's an employer, he won't trigger blacklist statutes.

The question I found myself asking yesterday after Popehat patiently and carefully explained all this to a #GamerGate activist is whether or not the moral intuition, if not the actual jurisprudence underpinning anti-blacklist statutes applies to privately-maintained lists. If I, a private citizen, create a public list of people who are heretical in mine eyes, and this list becomes extremely popular, perhaps even gaining a universal following among leaders of the industry I work in, isn't the effect to the people on the list exactly the same as if an employer had done it? Wouldn't I be just as complicit in ruining the career prospects of the people who've offended me?

A few possible differences:

  1. Employers can maintain hidden blacklists, and there's no way to tell for sure whether or not the names on it constitute a protected class. Publicly visible blacklists kept by ordinary citizens are open to review and scrutiny.
  2. Corporate blacklists can be used to sustain anti-competitive collusion. One of the solutions to a repeated PD game (at least on the margin) is to have a coordination mechanism. A blacklist can serve precisely this function. Put a name or two on there strategically to punish conspiracy defectors, and you raise the ex ante probability of sustainable cartel behavior. Private individuals have no incentive to dally in boardroom shenanigans.
  3. My list is entirely opt-in. It's merely an offer. Acceptance of its elements must necessarily be voluntary. I am unable to withhold significant future commerce in the event that an employer crosses the picket line so to speak. I have precious little market power, in other words.
Perhaps you might add to this list. Perhaps not. Perhaps you'd quibble with the logic of the items in this list. I know I would. I'm not all that fond of the idea of protected classes, for example. Still, I am at no more liberty to influence the public jurisprudence than I am to influence the public taste for television programming. What I can do is attempt to parse the prevailing sentiment in an effort to predict what sort of legislative tomfoolery we might see rollin' down the pike.

On the one hand, social media does seem to be increasingly salient in employment selection/termination practices (Pax Dickinson, eg). On the other hand, it's dang hard to muster much public sympathy for the low-caste males that end up on mass Twitter block lists. What legislator would go to the mat for some douche cannon who takes preternatural glee in leveling vague (or sometimes very clear and targeted) rape and murder threats at women? My best guess? Privately-maintained block lists aren't likely to be non-euvoluntary enough to incite legislation unless and until someone starts a practically effective one (i.e. one that employers begin to honor) that actually targets people who are in an honest-to-Jim protected class.

No one would be stupid enough to do that though, right? 


h/t K.W. (Patrick maybe? Naw, Ken for sure. Like 90% sure it's Ken.) and Randi Harper.


  1. "What legislator would go to the mat for some douche cannon who takes preternatural glee in leveling vague (or sometimes very clear and targeted) rape and murder threats at women?"

    Your implication that everyone on the block list meets that description is provably false. To be on the block list, you only need to follow certain twitter accounts.

    1. If that's the case, then the list contains no useful information for employers, and as such is less likely to trigger legislative response, correct?

    2. With any luck to those on the list, yes.

  2. I'd ad do your list that the people creating these lists are doing so first and foremost as way to effectively curate their social media presence, which is an important purpose all by itself; without the blocklist, their options would be to get bombarded by ever knucklehead on the internet, or settle in for a full-time job of twitter blocking. Even if a hypothetical employer decided to use their blocklists as a criteria for employment, I can't see how they could be held liable or forbidden from creating and using tools to effectively manage who they interact with on social media (which, as a layman, I wonder if might even have constitutional issues re: freedom of association), regardless of whether an unrelated third party takes their perfectly functional list and does something illegal with it.


Do you have suggestions on where we could find more examples of this phenomenon?