Free Speech

Federalist Society Panel on Compelled Speech

|The Volokh Conspiracy |

I'll be on what I hope will be a very interesting panel this afternoon starting 3 pm Eastern time, at the Federalist Society Lawyer's Division conference, together with Prof. Amanda Shanor (Wharton), Prof. Mark Rienzi (Catholic University), and our moderator Judge Sandra Segal Ikuta (9th Cir.). Here is the brief summary, though of course we'll get into much more detail; hope you check it out, either live or afterwards:

When can the government require you to speak, or to host speech on your property, or to pay for speech you dislike? Three of the Court's 2018 cases—the Masterpiece Cakeshop wedding cake/same-sex wedding case, the Janus union dues case, and the National Institute of Family and Life Advocates pregnancy crisis center case—all involved this question. So do many other matters that are in the news: For instance, the controversy over whether people can be required to use particular pronouns to refer to others is in large measure a controversy about compelled speech. But the law in this area is surprisingly complicated, ambiguous, and unsettled. This panel will consider what the law is, and what the law ought to be.I

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  1. “When can the government require you to speak, or to host speech on your property, or to pay for speech you dislike?”

    Never.

    Where’s my check? I hope it’s in the mail.

    1. So to clarify, under your rule not only can you not be compelled to testify against yourself, you can’t be compelled to testify against someone else. Among other things, that would seem to invalidate the Air Commerce Act of 1926 and everything that gives Congress the right to compel testimony. In fact, that blanket rule would kill all subpoenas, right? No compulsory filing of tax returns, either? Kill off all regulatory disclosures and reports?

      I like the philosophical simplicity of “never” but I think that position is less workable than you imagine.

      1. The govt can also compel speech (actually action) via eminent domain and the draft (and the current Selective Service System).

      2. I was responding specifically to the paragraph in the article itself.

        1. And as the article says later in that same paragraph, it’s “surprisingly complicated, ambiguous, and unsettled.”

          1. Yes. I agree but my ‘never’ applies specifically in the realm of free speech as per the incidences we’ve been seeing lately.

            If it extends to the example you provide than I can amend it to *almost* never but being as close to *never* as possible is wise in my opinion.

      3. I agree with “never” and would have no problem with the supposedly absurd cases you raise. I also would not allow exceptions to the Fifth Amendment based on limited grants of immunity.

        If the government wants my testimony to convict someone else, let them offer me something for it, as they already do.

  2. “For instance, the controversy over whether people can be required to use particular pronouns to refer to others”

    That this could even BE a controversy in the first place says terrible things about what is going on in the US today. The country I was born in is dying, and the death certificate is going to say it was murdered.

    1. You expect anything different?

      For 13.8 billion years (or about 6,000 years for those more enlightened than I am), things have been changing.

      Why should you be immune from change?

      1. Of course things are going to change, but “for the better” would have been nice.

    2. Suicide, not murder. The idiots are elected.

    3. Less murdered and more of suicide. The death of the US will not happen from the outside but from within. The nation is killing itself which makes it suicide.

  3. I hope this covers compulsory reporting of crimes with penalties for not doing so attached. In Washington, recently passed Initiative 1639 requires reporting of stolen guns, with criminal penalties for not doing so. That seems like a first amendment violation, and also pointless given how spectacularly disinterested the local police are in property crimes.

    1. Incidentally, the intersection between compelled speech and firearms regulation seems like it would also be right in your wheelhouse. Do you have any past blogs on the topic, or have you considered preparing a brief one?

    2. It’s chiefly a preemptive move against the “My guns were stolen years ago, I just didn’t bother reporting it.” defense some people have suggested in the event of widespread gun confiscation. The idea being, they come for the guns some record says you have, you claim they were stolen, and they say, “Really? You never reported it, off to jail with you!”

      1. Have one registered firearm, a cheap .22 rifle is ideal.
        They show up, you give it to them, offer the ammunition as proof of sincerity, end of story.
        For the rest “don’t ask, don’t tell”.

        1. It’s not an all purpose answer to refusal to comply with confiscation. Just pointing out what likely motivated it.

      2. No, you lost them in a “tragic boating accident.” That way you don’t have to report it.

    3. The government can put criminal penalties on a party for not reporting knowledge of stolen gun and at the same time can barging away any criminal penalties that a person that used that same stolen gun to commit a crime. See any incongruities here?

  4. Do we really need some stupid blue ribbon committee to figure out that government mandated pronouns are a bad idea?

    1. It’s like any war: If only one side shows up, they win by default. So, yeah, unfortunately we do; There are going to be the stupid blue ribbon committees anyway, we need to be on them.

  5. Regarding pronouns for “non-binary gendered” people, I have been advocating that we start using only one gender of pronouns for everybody: the male. (And let the female pronouns fall into disuse.) Not only is this already acceptable as correct English, but it will relieve everyone of the need ever again to take a position on what gender another person “is.”

  6. Never knew Prof. V had an accent.

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