Listener Interests in Compelled Speech Cases

84 Pages Posted: 19 Sep 2008  

Laurent Sacharoff

University of Arkansas School of Law

Date Written: May 15, 2008

Abstract

The First Amendment prohibits the government from compelling speech. But numerous scholars have recently identified a fundamental problem with the compelled speech doctrine: it is unclear exactly why the First Amendment should protect against compelled speech at all. This article argues, first, that traditional explanations of the compelled speech doctrine fail because they focus on the speaker's "freedom of mind," even though much compelled speech neither affects what the speaker believes nor misleads listeners about that speaker's actual beliefs. Second, this article proposes a solution: that we should abandon any consideration of the speaker's freedom of mind. Instead the Court should simply apply the traditional justifications for free speech to compelled speech cases and analyze them from a listener point of view. A focus on the listener point of view not only helps explain an otherwise puzzling doctrine but also should provide helpful guidance in deciding future compelled speech cases. In fact, the relative frequency of compelled speech cases in the last three years makes the need to ground the compelled speech doctrine more firmly in traditional First Amendment principles timely as well.

Keywords: First Amendment, Free Speech, Compelled Speech, Compelled Subsidy, Freedom of Mind, Constitutional Law, Beef, Barnette, Flag Salute, License Plate

JEL Classification: K10, K19

Suggested Citation

Sacharoff, Laurent, Listener Interests in Compelled Speech Cases (May 15, 2008). California Western Law Review, Vol. 44, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1270143

Laurent Sacharoff (Contact Author)

University of Arkansas School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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