Free To SLAPP

As the valiant M-Razz persists in his efforts to preserve the integrity of anti-SLAPP legislation in the Silver State, consider the ongoing strife weathered by Cody Wilson. Mr. Wilson posted instructions on how to 3D print a single-use firearm. The State Department ordered the materials taken down under international arms trafficking regulations.Bless his heart, but he's fighting them with a 1A defense.

I'm sure I needn't remind you that SLAPP stands for "strategic lawsuit against public participation." A SLAPP suit is tort action designed to get someone to cease and desist by tying them up in an expensive, time-consuming legal proceeding. Most folks would sensibly cease and/or desist in otherwise protected critical speech if it meant avoiding the harrying frustrations of an encounter with the state's justice system. Enter anti-SLAPP. Prominent defenders of speech (I loathe the term 'free speech' more with each passing day) like Randazza or Ken White at Popehat or others in my 1A twitter blawgophere favor harsh penalties for vexatious litigants.

I too favor harsh penalties for vexatious litigants. However, the most vexatious of all are overambitious law enforcement agencies with scant regard for constitutional jurisprudence. Prenda or Roca Labs might end up in hot water for frivolously seeking to silence people they don't like, but it'll be a cold day in hell when State Department officials face the same administration of justice. Furthermore, that's a feature of the sovereign immunity doctrine. The public has no interest in law enforcement agencies scared of their own shadow. I submit for your consideration that the problem with state-sponsored harassment of Mr. Wilson lies not with executive function, but with the malcompetent ambitions of legislators so eager to appear "productive" that they pass rafts of poorly-considered, incoherent, unnecessary legislation to appeal to ill-informed, irrational constituents to cement their tenure and guarantee their legacies. Substantive due process in the legislature is an impediment to having a library named after you someday.

Anti-SLAPP statutes go a long way towards making public participation more euvoluntary. Pity we can't take the last few tottering steps and constrain the wild ambitions of the sovereign while we're at it. #BTFSTTFG

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? 

Right?

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

What Would YOU Do?

A man in Narragansett, RI is suing a church, because there are bells.

Okay, so blaming the breakup of his marriage on the bells is perhaps a bit much.

But the church did not start ringing the bells until (relatively) recently.  And the sound is artificially amplified, with speakers.  And they ring every morning, even during the week.

In honor of the passing of RH Coase, one of the greatest economists of all time, I ask:  If you were the judge, what would YOU do?