New Article on Compelled Speech, Forthcoming in the Texas Law Review

I'd love to have people's comments this week, since I owe the journal a final draft Saturday the 24th. [UPDATE: Just to be clear, the article aims to provide a coherent framework for understanding the current precedents, not to come up with new rules from scratch.]

You can see a draft here [UPDATE: link fixed], but here's the Introduction:

Speech compulsions, the Court has often held, are as constitutionally suspect as are speech restrictions: "[T]he First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say."[1] In the Court, the doctrine dates back to the 1943 flag salute case,[2] which held that "involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence."[3]

In state courts, it dates back even earlier: The very first state statute struck down on free speech grounds—in 1894, by the Georgia Supreme Court—was a "service letter" statute under which employers were obligated to give dismissed employees a letter explaining the reason for the dismissal.[4] "Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence," held the court.[5]

And the doctrine remains strong today: just this last Term, it was powerfully reaffirmed in Janus v. American Federation of State, County & Municipal Employees, Council 31 (AFSCME)[6] and National Institute of Family & Life Advocates (NIFLA) v. Becerra[7] and was relied on by Justice Thomas in his concurrence (joined by Justice Gorsuch) in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.[8]

Yet, however emphatically stated and deeply rooted the broad principle may be, its details are often hard to pin down. For instance:

1. Janus holds that the First Amendment generally bars compelling people to turn over money to a private organization that will use it for speech.[9] But Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR),[10] Turner Broadcasting System, Inc. v. FCC,[11] and PruneYard Shopping Center v. Robins[12] hold that compelling people to turn over use of their property to a private organization that will use it for speech is just fine.[13] What's the difference?
2. PruneYard upheld a requirement that large shopping malls let the public speak on their property, partly because "no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message."[14] But FAIR upheld a requirement that law schools allow military recruiters to speak on their property, which did involve governmental discrimination for a particular message.[15]
3. NIFLA held that the government can't require pregnancy crisis centers to inform patients about the availability of low-cost abortions.[16] But Planned Parenthood of Southeastern Pennsylvania v. Casey[17] held that the government can require doctors who perform abortions to "inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the 'probable gestational age of the unborn child.'"[18]
4. The plurality in Pacific Gas & Electric Co. v. Public Utilities Commission of California[19] suggested that requiring someone to distribute another's speech may be unconstitutional when it pressures the distributor to respond to that speech.[20] Yet that pressure was likely present in FAIR, but the Court upheld the compelled hosting in that case.[21]

And, partly because of these internal tensions, the doctrine contains major uncertainties:

1. Does requiring people to create speech—such as when a commercial photographer is required to photograph same-sex weddings if she photographs opposite-sex weddings—constitute impermissible speech compulsion?[22]
2. May the government require, say, Twitter or Facebook to host user pages without discrimination based on political ideology (or religious ideology)?
3. When, if ever, may the government compel people to convey facts to the government—for instance, to answer census questions, to file tax returns, to give information on driver's license applications,[23] to report to the police certain crimes that they have observed, and the like—or to third parties?[24]
4. Is it constitutional for the law to give access rights to particular speakers and not to others? May states, for instance, mandate that private shopping malls let people gather signatures for ballot measures but not for other causes? May states mandate that homeowners' associations let unit owners display American flags in common areas without similarly requiring the associations to tolerate other symbols?[25]

In this Essay, I'll try to summarize the law, where it's settled, and identify the internal tensions, where they exist. Indeed, most sections will start with a (admittedly oversimplified) black-letter summary. I will take the existing Supreme Court precedents as given because I want to be helpful to lawyers, judges, and scholars who want to analyze particular controversies within the legal framework that the Court has established. But the analysis should also offer plenty to those who want to critique the framework or suggest that some parts of it need to be reversed.

In particular, I will suggest that the compelled speech doctrine actually contains two separate strands:

1. It forbids speech compulsions that also restrict speech—for instance by compelling a newspaper editor or a parade organizer to include certain material, and thus restricting them from creating precisely the newspaper or parade that they want to create.
2. It also forbids some "pure speech compulsions," which do not restrict speech but which unduly intrude on the compelled person's autonomy.

The important questions under each strand tend to be different. In the first category, for instance, the contested question is often whether a particular aggregation of speech is what I call a "coherent speech product" (e.g., the floats in a parade) through which its organizer speaks, or an array of unrelated speech (e.g., the channels on a cable system) that is solely the speech of the separate speakers. In the second category, the contested question often turns on whether some compulsion is more like a compulsion to speak (presumptively unconstitutional) or more like a compulsion to host others' speech (often constitutional).

And the restraints on government power often differ under the two strands as well: Compelling people to include facts in their coherent speech products (say, in their newspapers), thus altering the content of their speech, is generally unconstitutional. Pure speech compulsions that require people to reveal facts in a stand-alone way, on the other hand, may well be largely permissible. I will discuss these two categories in Parts I and II and then turn to two general exceptions to the protections offered under both strands—the exception for speech integral to conduct (Part III) and the special rules for commercial advertising (Part IV).

A terminological note: throughout, I will often speak of a compulsion as being "presumptively unconstitutional." This presumption could be rebutted by a showing that the compulsion passes strict scrutiny,[26] or perhaps (in certain areas of free speech law) "exacting scrutiny" or a similar doctrine. Likewise, when the government is acting in a special role that lets it impose extra speech restrictions—as educator, employer, landlord, regulator of the airwaves, and the like—it may have some extra power to compel speech as well.[27]

The question we'll discuss in this Essay will generally be: When does a government action become a speech compulsion subject to serious First Amendment scrutiny, usually akin to the scrutiny applied to similar speech restrictions? How that scrutiny should be applied is a matter left to other articles.

[1].Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988).

[2].W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).

[3].Id. at 633.

[4].See Wallace v. Ga., C. & N. Ry. Co., 22 S.E. 579, 579–80 (Ga. 1894); see also Atchison, T. & S.F. Ry. Co. v. Brown, 102 P. 459, 461 (Kan. 1909) (also holding unconstitutional a state statute obligating employers to provide written explanation for dismissal of employees); St. Louis Sw. Ry. Co. of Tex. v. Griffin, 171 S.W. 703, 705–06 (Tex. 1914) (same). But see Cheek v. Prudential Ins. Co. of Am., 192 S.W. 387, 392–93 (Mo. 1916) (taking the opposite view), aff'd on other grounds, 259 U.S. 530, 543–48 (1922) (the last Supreme Court case holding that the Free Speech Clause is not incorporated against the states under the Fourteenth Amendment). The laws aim at the practice, familiar to readers of 18th and 19th century English and American novels, of dismissing an employee "without a character." See, e.g., 1 Samuel Richardson, Pamela: or, Virtue Rewarded 38 (2d ed. 1741) ("I hope he will let good Mrs. Jervis give me a [c]haracter, for fear it should be thought I was turn'd away for [d]ishonesty.") (emphasis omitted). Alleging suspected misconduct on a dismissed employee's part would leave the employer open to a defamation lawsuit, but dismissing the employee without a character could implicitly convey the same message without a risk of liability. The service-letter statute aimed to prevent this and to require employers to provide a true statement of the reasons for dismissal, enforced by the statute on the one side and the risk of defamation liability for false statements on the other.

[5].Wallace, 22 S.E. at 579.

[6].138 S. Ct. 2448, 2460, 2464, 2486 (2018).

[7].138 S. Ct. 2361, 2377–78 (2018).

[8].138 S. Ct. 1719, 1740–48 (2018) (Thomas, J., concurring in part and concurring in the judgment).

[9].Janus, 138 S. Ct. at 2486.

[10].547 U.S. 47 (2006).

[11].512 U.S. 622 (1994).

[12].447 U.S. 74 (1980).

[13].See infra subpart I(B). I use "people" here generically to include institutions, and the Court has generally not focused in First Amendment cases on whether the objector is an individual (as in PruneYard, which was apparently owned by one man) or an institution (such as the universities in FAIR, the media businesses in Turner or Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the nonprofits in NIFLA, or the nonmedia business in Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986)).

[14].PruneYard, 447 U.S. at 87.

[15].FAIR, 547 U.S. at 59–60. The statute in FAIR required law schools to host recruiters as a condition of getting federal funds, but the Court didn't rely on the government's power as subsidizer—it held that the requirement could have been "constitutionally imposed directly" by Congress as a categorical command rather than as a funding condition. Id.

[16].Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371–76 (2018).

[17].505 U.S. 833 (1992).

[18].Id. at 881, 884. The NIFLA opinions at least debated this potential tension; the first three tensions identified in the text have not been squarely confronted by the Court.

[19].475 U.S. 1 (1986).

[20].Id. at 15–16.

[21].See infra subpart I(B).

[22].See discussion infra subpart II(E).

[23].Note that this can't be distinguished on the grounds that the compelled speech in driver's license applications is a condition of getting a government benefit (the right to drive on publicly owned roads). Wooley v. Maynard, 430 U.S. 705 (1977), applied the compelled speech doctrine even though the requirement of having a state-motto-bearing license plate was also a condition of driving on public roads. Id. at 715–17.

[24].See discussion infra subpart II(D).

[25].See discussion infra subsection II(C)(4)(c).

[26].See, e.g., Citizens United v. FEC, 558 U.S. 310, 340 (2010).

[27].Thus, for instance, just as the government may restrict speech as part of a criminal sentence, or a probation condition, it may be able to compel speech in those contexts as well. See, e.g., United States v. Clark, 918 F.2d 843, 848 (9th Cir. 1990), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir. 1998); People v. Corona, No. D054887, 2010 WL 769150, at *3–4 (Cal. Ct. App. Mar. 8, 2010); State v. K.H.–H., 374 P.3d 1141, 1146 (Wash. 2016). Likewise, Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969), upheld the Fairness Doctrine for over-the-airwaves broadcasting, but this is because broadcasting speech is generally less protected by the First Amendment. See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 380, 402 (1984); FCC v. Pacifica Found., 438 U.S. 726, 748–50 (1978). The government also doubtless had broad power to compel speech by its employees, see, for example Slocum v. Fire & Police Comm'n of E. Peoria, 290 N.E.2d 28, 33 (Ill. App. Ct. 1972) (holding that a Police Department's requirement that its officers wear an American flag emblem on their uniform did not violate their First Amendment rights), though perhaps not unlimited power, see for example, Ops. of the Justices to the Governor, 363 N.E.2d 251, 255 (Mass. 1977) (concluding that a bill requiring teachers to lead their public school classes in reciting the Pledge of Allegiance would violate their First Amendment rights).