Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 77
because of the connection, involvement, or association of members of such
group with the enterprise or institution;
(c) Refusing to conduct business with or to maintain a business,
professional, or academic relationship with any individual, enterprise, or
institution because of the association of such individual, enterprise, or
institution with members of such group;
(d) Refusing to fulfill one’s business, professional, or employment
obligations:
(i) To members of such group; or
(ii) In relation to any function, business, goods, or services because of
the connection of such function, business, goods, or services to
members of such group.
15.(4) Nothing in this section shall prevent the criticism of, or discussion
concerning, the actions or policies of any country, government, or group; or
calling for, suggesting, or discussing any governmental policy or action. 147
147
At first glance, this suggestion might seem strange in an article largely intended to protect
freedom of expression. At least in certain circumstances, boycotts (including some of the
pressure tactics referred to in clause 15(2)(c)) have been held to be within First Amendment
protection. In NAACP v. Clairborne Hardware, 102 S. Ct. 3409 (1982), the protected boycott
had racial elements—it was a boycott of white merchants intended to bring about civil rights
reforms. However, far from promoting hatred or discrimination, its purpose was “designed to
force governmental and economic changes and to effectuate rights guaranteed by the
Constitution itself.” (p. 3426)
This proposed section does not prohibit all boycotts, or even all political boycotts, but merely
prohibits calling for boycotts in conjunction with advocating, promoting, or expressing hatred
against identifiable groups. As I argued earlier, even though certain ideas taken alone shouldn’t
be banned, and certain methods of communication and/or actions ought ordinarily to be
permissible, the particular message coupled with particular actions or methods of
communication might create a high enough degree or risk of harm as to justify prohibiting or
restricting them when they are carried out together.
Additionally, as sympathetic as one might be to the American Black civil rights movement (or
other civil rights or progressive movements that have utilized methods such as boycotts), there
are aspects of the NAACP v. Clairborne Hardware judgment itself that one can find troubling.
The Court held:
“In addition, names of boycott violators were read aloud at meetings of the First Baptist
Church and published in a local newspaper. Petitioners admittedly sought to persuade
others to join the boycott through social pressure and the ‘threat’ of social ostracism.
Speech does not lose its protected character, simply because it may embarrass others or
coerce them into action…” (pp. 3423-3424).
It further held that “There is nothing unlawful in standing outside a store and recording
names.” (p. 3432) Though citing another case where privacy arguments were rejected (at p.
3424), I respectfully suggest that the Court was unduly dismissive of the privacy interests of a
person (especially a private citizen) in not having personal activity deliberately monitored,