Towards a More Explicit, Independent, Consistent and Nuanced Compelled Speech Doctrine
38 Pages Posted: 13 Mar 2019 Last revised: 7 Jun 2019
Date Written: March 12, 2019
Cases involving what the Court calls “compelled speech” are decided haphazardly and inconsistently, without any attempt to formalize the analyses into rules of decision. One resulting and abiding shortcoming of the current state of affairs is that compelled speech has remained essentially an all-or-nothing domain of constitutional decision-making. Based on a somewhat inscrutable and seemingly selective consideration of various factors, compelled speech claims are either embraced and subjected to strict scrutiny review, or rejected as not implicating the right not to be compelled to speak at all. No detailed identification of the circumstances that warrant more or less rigorous standards of review has been recognized.
This lack of rigorous doctrinal structure has led to more compelled-speech litigation and, perhaps more problematically, an increased willingness of courts to expand the scope of the case law in this area. Courts appear to be incapable of identifying and justifying durable limitations on the definition of constitutionally impermissible compulsion of speech. Instead, the prohibition against compelled speech is being employed to justify more ambitious judicial interference with areas of law and policy previously understood to be reserved for political deliberation and resolution.
In this article, we propose to lay out a foundation and direction for developing distinctive compelled speech doctrine. While our analysis and suggestions take account of important judicial holdings in many compelled speech cases, we are not attempting to draw a doctrinal line that connects or explains all of the Court’s decisions in a harmonious or intelligible way. Indeed, after we explain the circumstances under which the specter of government compulsion of speech should be considered very troubling (warranting rigorous review) and those under which it should not (justifying a more flexible standard akin to intermediate level scrutiny or something more deferential still), we will argue that some decisions were wrongly decided.
Among the most important insights we offer is that while seminal conventional free speech doctrine in cases involving restrictions on speech is grounded primarily on instrumental values relating to democratic self-governance and secondarily on values of individual autonomy and dignity, that hierarchy is often inverted when compelled speech is at issue: The instrumental reasons for being skeptical of government compulsion of speech are harder to see and less frequently present; yet dignity and autonomy concerns can often powerfully explain why government should not be allowed to compel speech that it could easily restrict. None of this means conventional doctrine is useless in adjudicating compelled speech cases – it does mean, however, that conventional doctrine must be retooled into a different kind of machinery for use on the compelled speech battlefield.
A second important theme, sometimes prominently identified on the face of our observations and at other times implicit in our analysis, is the very broad background power the government enjoys, consistent with the First Amendment, to speak out for itself (through its own government agents) on most matters in society. Although too much government speech can threaten democratic values and a free society, the Court has of yet acknowledged relatively few judicially enforceable limits on this power. So one important set of questions we think should be asked in each compelled speech arena is: (1) whether government is really attempting to use private actors to disseminate the government’s message – that is, whether the government is using a private person or entity’s activities as an occasion or excuse to further the government’s preferred message; and (2) if so, is the government really avoiding any costs (political or economic) that would otherwise cabin its (potentially awesome) power to speak by conscripting private messengers for its own use. If the answer to either of these questions is no, then the case for striking down a government law as impermissible compelled speech is weaker, unless dignitary concerns are significant. On the other hand, if the answers to these questions is yes, then courts can use compelled speech doctrine to prevent government from speaking too much, or too costlessly.
A third related theme raises this question: given that government can speak loudly and expansively with its own resources to influence the marketplace of ideas without violating first amendment guarantees, does the government speaking through commandeered private individuals or entities distort public discourse to any greater extent than what occurs when government speaks through its own agents. If compelling speech creates no greater danger to the instrumental values freedom of speech furthers in facilitating democratic self-government than the government speaking with its own resources, then constitutional challenges to compelled speech most be grounded in dignitary values alone.
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