Compelled Speech

Author:Victor Brudney

Page 475

The FIRST AMENDMENT mandate that "Congress shall make no law ? abridging the freedom of speech" implies a stricture against compelling or coercing persons to engage in speech they do not wish to make?either because they disagree with the speech or because they wish to remain silent. Substantially the same considerations that drive the prohibition against abridgement of FREEDOM OF SPEECH?whether derived from the notion of the speaker's autonomy or from the listener's entitlement or the societal value of undistorted public discourse?drive the strictures against coercion of speech. The speech protected by the First Amendment may consist of utterances or other forms of expressive conduct by a person or the publication or transmission of expression of others, not all of which are equally protected as speech. Protected speech may also consist of the contribution of funds or furnishing of facilities to be used by the recipients, inter alia, for expressive conduct (i.e., the contribution may be assimilated to speech of the contributor).

Government mandates to utter or publish particular expressions or kinds of expression produce coerced speech, but the coercion's unconstitutionality appears to turn in large part on the content of the expression. High-value speech (such as a LOYALTY OATH or support for an expressive association) may not be coerced, but low-value or low-cost or content-neutral speech (such as disclosure of relevant facts in the sale of goods or securities) may be coerced. Government award, or threat of denial of benefits (like licensing, tax relief, subsidy, employment, or admission to the bar) conditioned on expression by the recipient may also unconstitutionally compel expression, apparently without regard to the magnitude of the benefits. The decisions of the Supreme Court appear to rest on the quality of the compelled expression's expected inhibiting effect on other high-value expression or association, and to vary with the content of the compelled expression.

Another framework for analyzing the problem of compelled speech entails connecting one person's compelled contribution of funds or facilities or opportunities to speak with another person's expression, so as to impute to the former the latter's expression. Justification for the assimilation is not self-evident, and the circumstances under which such contribution is, or should be, equated with speech of the contributor are difficult to state. The problem is most...

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