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Friday, November 04, 2016

Upstream, downstream, and dry markets

Paul's post on ballot-selfie laws offers a good framework and illustration of what states are trying to accomplish with these prohibitions. And, as he argues, the justifications are real. But Paul's explanation reveals why First Amendment challenges are succeeding--the laws are based on a "dry-the-market" rationale, prohibiting expressive behavior to eliminate undesirable upstream or downstream behavior leading to or following from the speech. So as Paul explains it: Prohibiting photographs of the completed ballot dries the market for those who might attempt to coerce people to vote a certain way and to demand proof that they did so--if the voter cannot take the photo, then no one can demand photographic proof, while the option to photograph makes it possible to demand that proof.

But courts are generally hostile to dry-the-market laws, at least when regulating categories of protected speech. So, for example, the Court refused to allow punishment of the production and sale of dog-fighting videos in order to dry the downstream market for such videos and thus dry the upstream market for the depicted behavior. Similarly, the Court refused to punish publication of a a recording lawfully obtained by a publisher to deter unlawful interception upstream. So here, the courts will say that government can and should prohibit downstream coercion and demands for proof of votes, but it cannot prohibit the upstream expression of taking the photo.

Posted by Howard Wasserman on November 4, 2016 at 04:13 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


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