Deterring Speech: When is it Mccarthyism? When is it Proper?

38 Pages Posted: 4 Feb 2005

See all articles by Eugene Volokh

Eugene Volokh

University of California, Los Angeles (UCLA) - School of Law


What may government officials and other actors (businesses, organizations, or individuals) do to prevent speech that they think to be evil and dangerous?

Some possible actions are uncontroversial; others clearly violate the First Amendment. But in between lie practices that are contested: May government officials argue that its political opponents are unwillingly helping evil? May private parties properly use their economic power to retaliate against those whose views they disapprove of? May the government subpoena library and bookstore records to help uncover a political criminal's or terrorist's identity?

These practices may deter - even without legally prohibiting - certain kinds of speech, and they may even be intended to deter such speech. Yet not all deterrence of speech, especially through nongovernmental action, is improper. This essay briefly inquires when such practices really deserve to be labeled McCarthyism, and to be forbidden by the First Amendment, by statute, or by social norm.

Keywords: Free Speech, Constitutional Law, McCarthyism

Suggested Citation

Volokh, Eugene, Deterring Speech: When is it Mccarthyism? When is it Proper?. UCLA School of Law Research Paper No. 05-2, Available at SSRN:

Eugene Volokh (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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