Legal to take out ads listing porn-store customers, to embarrass/drive away business?

[Gfactor]

@MsRobyn

But doesn’t this lead to the issue of agency – if Baldwin’s organization is getting their driver’s information from the state motor vehicles bureau, doesn’t that make the state an agent of Baldwin’s, and isn’t that government interference in the dissemination of ideas?

I see where you are going here, but agency is probably not the right concept. An agent is “a person authorized by another to act for him.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2001_sc/68632-7&invol=3 Here, Baldwin isn’t authorizing the state to act for him, he’s simply taking advantage of whatever administrative procedures the state offers for obtaining registration information. And as I have indicated, I doubt the state will give them to him.

More important, you really want Baldwin to be an agent of the state (not the other way around) for that particular argument to work, and he clearly isn’t.

But this all begs a larger question (not raised by Campion’s hypothetical). Is the state’s provision of information sufficient to constitute state action? The short answer is “no.” http://caselaw.lp.findlaw.com/data/constitution/amendment14/18.html#3

But I’m not so sure that the state (or village) could not do what Baldwin is doing. The license plate issue is a bit of a red herring because of the federal statute. So let’s try a different hypothetical.

Suppose the Village of Nyack (population 6,734), frustrated as it is by the First Amendment’s limitations on prohibiting adult-oriented businesses (as the article says, they can be relegated to certain areas, but not banned), develops a new plan.

It erects a large television screen on a billboard. The screen shows . . . you guessed it. . . a live 24-hour video feed of the parking lot of the shop. The Village also posts still photos captured from the video feed on separate billboards, publishes them as as posters in public buildings and makes the posters available for posting by the private sector.

What result?

I’m off to the law library anyway. So if I have a few minutes to spare, I’ll try to find some cases.

[teela_brown]

I haven’t a cite, but this reminds of something that happened in a community near where I live.

A woman opened a sex club or “orgy house” as the locals called it, on a rural road near Gilroy. I seem to remember it was free for women to join, but it charged a fee for men. Although it was out in the country, she still had nearby neighbors. The existing neighbors did not appreciate the arrival of eager lotharios all weekend long, so they started taking down license plate numbers and photographing cars and publishing them in local papers. Attendance immediately fell off, and the orgy house closed.

[Kalhoun]

OMG, this isn’t prostitution! It’s dirty movies and magazines! Who gives a flying fuck if someone puts your name in the paper because you bought some porn? Are you actually hiding this stuff from your wife (or husband)? Does your boss care?

Baldwin is only serving to make himself look like an uptight religious fanatic. Nothing more. I’d turn and smile for the cameras on my way in.

[Gfactor]

Back from the library. Didn’t have a lot of time, but I reviewed a treatise and the annotations in USCA, and did some Westlaw searches.

There are some broad brush statements out there, like this one:

Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry - a government dedicated to the establishment of justice and the preservation of liberty. U.S. Const., Amend. I. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States.

Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.

Bates v. Little Rock (Citations omitted.)

Didn’t find anything directly on point though. The text of the Amendment itself only applies to laws . . .

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.

First Amendment - U.S. Constitution - FindLaw

But in other First Amendment cases, the Court has held state actions that do not involve “laws” unonstitutional. E.g., Lee v. Weisman (unconstitutional for school to invite clergy to give invocation and benedictions at school graduation).

OTOH, there is language like this:

It is inevitable that government will adopt and pursue programs and policies within its constitutional powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens. The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies. . . .

. . . .

When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.

Board of Regents of the Univ. of Wisc. Sys. v. Southworth

Southworth has been described as both recognizing government free speech rights and rejecting a “political establishment clause.”