'Not in My Name' Claims of Constitutional Right
43 Pages Posted: 12 Jun 2018 Last revised: 21 Jun 2018
Date Written: June 12, 2018
We have a constitutional right against the state’s forcing us to be associated with expression with which we do not wish to be associated. The freedom of expressive association is not stated in our Constitution’s text. Rather, it is derived from various provisions of the First Amendment. As the freedom of speech protects, among other things, our right to shape how we present ourselves to the world, so does the freedom of expressive association protect us from the state’s shaping us by connecting us to ideas not of our choosing. Our freedom of expressive association allows us to claim an idea as our own, and to say “that idea is not mine … and you may not say it in my name.” This “not in my name” conception of constitutional right has iterations in several areas of First Amendment law – compelled speech, compelled subsidies for speech, and the Establishment Clause. Compelled support for government speech, though, is valid, because the state speaks in the name of its citizens. The understanding of expressive association as undergirding “not in my name” claims of constitutional right allows us to solve two lingering problems of misattribution in the compelled subsidies for speech and Establishment Clause case law. But whether or not misattribution is present, we maintain a broad presumptive right against the state’s advancing ideas in our name.
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