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Abstract: Watchlists are not what they used to be. Traditional government watchlists-such as terrorist watchlists and no-fly lists-are surveillance tools that classify individuals as dangerous, suspicious, or malevolent. Conventional watchlists are critiqued for their opacity, inadequate due process safeguards, and lax accountability measures. Government watchlists are also criticized because they can result in discrimination, travel restrictions, and greater law enforcement scrutiny. But the nature of watchlists has fundamentally changed. So have their consequences. The new watchlists-such as Turning Point USA's Professor Watchlist, Canary Mission's antisemitism watchlist, and the Southern Poverty Law Center's hate group watchlist-have emerged and have become normalized. Despite this shift, legal scholars and courts have largely overlooked them. This is a major oversight. The new watchlists raise novel concerns, lead to distinct consequences, and generate critical legal repercussions.
This article fills this significant gap. It provides the first comprehensive account of the new watchlists and demonstrates why they matter. It explains why the new watchlists emerged, explores their profound implications, and differentiates lawful from unlawful watchlisting. It argues that unlike government watchlists, the new watchlists are created by private actors, are publicly available, and are based mainly on open-source intelligence. It contends that three factors contributed to the rise of the new watchlists: declining trust in public institutions, increasing political polarization, and the advent of the internet and online culture. It demonstrates how the new watchlists result in novel effects that government watchlists do not. More specifically, the new watchlists publicly stigmatize individuals, lead to threats and harassment that encourage self-censorship, and help exclude individuals from public and private sector opportunities.
This article's original contributions distinguish lawful from illicit watchlisting. It shows how the new watchlists tend to constitute and contain constitutionally protected speech. Its concluding parts elucidate how different spheres of law safeguard individuals against illegal forms of watchlisting: defamation law, anti-doxxing statutes, and "true threats" and "incitement of imminent lawless action" as free speech exceptions. Ultimately, this article marks the first piece of scholarship to analyze the new watchlists and illuminate their connection with free speech, surveillance techniques, and vigilantism.
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