Saturday, March 02, 2002

Boycott has free speech on on its side

By Dan Horn
The Cincinnati Enquirer

        The leaders of Cincinnati's economic boycott see their campaign as an expression of free speech.

        The biggest victims of the boycott — members of the arts community — see the campaign as illegal interference with their business.

        The dispute will soon head to court if the Cincinnati Arts Association (CAA) follows through with a threat to sue one of the boycott groups.

        If that happens, the stakes will be high.

        Such a case could raise some of the most difficult questions in American law. What are the limits to the First Amendment? Can businesses protect themselves from “harmful” speech?

        “I haven't seen a lot of cases like this one,” said Paul Fiorelli, the director of Xavier University's Center for Business Ethics and Social Responsibility. “It's uncharted ground.”

        The boycott battle is unusual because the CAA's threat to sue is based on the claim of ""tortious interference,'' a legal term that usually comes up during contract disputes.

        The term means that a third party has somehow interfered with a legal relationship involving two other parties.

        The claim is used, for example, when one company tries to sabotage a merger agreement between other companies, or when pro football teams try to hire away another team's coach while he is still under contract.

        In the boycott case, the CAA claims, tortious interference would apply because the boycotters are interfering with legal contracts between the CAA and performers.

        In recent months, boycotters have persuaded comedian Bill Cosby, singer Smokey Robinson and jazz legend Wynton Marsalis to cancel shows in Cincinnati. The CAA, which oversees the Aronoff Center, blames the Coalition for a Just Cincinnati, one of the boycott groups.

        “The actions of the coalition interfered with our business relationship,” said Steve Loftin, the CAA's executive director. “This is about our business being interrupted.”

        The boycotters, however, say the arts community is not the target of the boycott. The purpose, they say, is to focus the city's attention on racial injustice.

        They say their protest was prompted by the failure of the legal system to punish police officers for the alleged abuse of black suspects.

        “The arts association could better spend its time and energy improving the (racial) climate,” said the Rev. Damon Lynch III, a boycott leader. “We all pay a price for injustice. We all have a measure of responsibility.”

        Legal experts say the CAA may have a tough time winning a claim of tortious interference, in large part because the boycotters have the First Amendment on their side.

        “Tortious interference is usually when someone is trying to capture the profits, to grab something from someone else,” said David Goldberger, a law professor at Ohio State University who specializes in the First Amendment. “That's not what you have when you have a political protest.”

        He said boycotts are a time-honored means of protest. Women's rights groups urged boycotts of states that did not approve the Equal Rights Amendment, and civil rights groups did the same to states that did not recognize Martin Luther King Day.

        “This is as American as apple pie,” Mr. Goldberger said.

        A case similar to Cincinnati's came out of Mississippi in the late 1960s when merchants sued the National Association for the Advancement of Colored People over an economic boycott, claiming tortious interference. The U.S. Supreme Court eventually ruled for the NAACP.

        “Speech to protest racial discrimination is essential political speech lying at the core of the First Amendment,” the justices wrote.

        Retired federal judge Nathaniel Jones, a former NAACP lawyer, worked on the Mississippi case. He said the First Amendment may also hold sway in the Cincinnati case, but the two cases are not identical.

        For one thing, the boycotters in Mississippi targeted the merchants' customers. In Cincinnati, they are targeting the artists who have signed contracts to perform here.

        Even if the boycotters beat the tortious interference claim, a lawsuit could still hurt them. The courts would likely require them to reveal information that they have kept secret up to now, such as their membership lists and other details about their organization.

        “These people have been pretty tight-lipped,” the former judge said. “The most ominous thing for them would be that they'd have to reveal all of that information.”


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