Epic takes on the right of association

Epic Systems, a software company in Madison, has announced that it will "try" not to do business with vendors who "support WMC with their current management." In response, a construction firm with a huge contract with Epic withdrew from WMC. (In an odd post, Paul Soglin argues that its "important" not to make the obvious connection.)

Tom Foley argues that this makes Epic CEO Judith Faulkner, a "corporate heroine." Maybe so, although it remains to be seen how hard Epic will "try" to avoid doing business with the politically distasteful. It would, in any event, be far more "heroic" to refuse to accept the tainted money of any current or potential customer who supports WMC.

Epic has the right to do this, although I believe that the threat to the judiciary is more multi-faceted than she does. Still, I think that political boycotts tend to stress the social fabric and are best avoided. To offer one example, assume that I think Planned Parenthood engages in a morally reprehensible business. I further believe that it ran an ad attacking certain legislators (including my representative, Jim Ott)as blatantly dishonest as anything I have seen. Maybe I wish no one would have anything to do with them. But should I find out who donates to the organization and avoid doing business with them ? Do we really want that to become a common practice?

And, if we don't, perhaps we need to call for a boycott of Epic Systems and any other organization that attempts to punish others for exercising their rights of free speech and association. Call that strategy Esenberg's Paradox.

But I wanted to blog about is the impact of the boycott on Soglin's other WMC-related crusade - the idea that advocacy organizations ought to be compelled to disclose their members or donors.

Here's the thing. There is a line of cases, beginning with NAACP v. Patterson, a case in which an Alabama court had, at the request of the court, ordered the NAACP to produce its membership list. The Court held that, under the circumstances, production of the list would subject members to reprisals and, therefore, violate their right of association. Later cases made clear that a claim of infringement of associational rights must be based upon a particularized showing of reprisal and one extended the principle to prohibit application of a campaign disclosure law to a minor political party which had historically been the subject of reprisals.

Most cases applying this concept involve some type of feared or actual harassment, but I am aware of at least one - involving a tort reform organization - that applied the Patterson line in the context of economic reprisals. What is clear is that an organization that wants to claim that it will be subject to reprisals has to point to some real threat and fear that will deter its members from further association. Recently, for example, the Wisconsin Supreme Court held that an advocacy organization had failed to make the requisite showing.

The constitutionality of any legislation requiring greater disclosure of who contributes to independent advocacy or belongs to advocacy organizations is not something that I can address here and would depend on just what is proposed. But I can imagine circumstances under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge.