Compelled speech.

• Author: Alexander, Larry

At Christmas, I, a lapsed Jew, attended mass with my wife, a devout Catholic, as I usually do. And, as usual, I stood when the congregation stood but did not kneel when the congregation knelt. When the congregation recited the Nicene Creed, I remained silent. But when Christmas carols were sung, I sang along.

Why did I sing the carols, which proclaim the divinity of Jesus, but not recite the Nicene Creed? After all, both contain propositions I do not believe to be true. My only answer is that it seemed wrong to recite the Creed (and to genuflect) but not to sing the carols.

What does this autobiographical revelation have to do with compelled speech, which, after all, is the title of this essay? I was not compelled by anyone to recite, kneel, or sing (or not to do so). If I had been, that would have been a different matter altogether.

Well, yes it would have been. And I am indeed interested in speech compelled by the government. However, as I hope to show, figuring out just when governmentally compelled speech is problematic requires understanding how those compelled to speak are harmed by being so compelled. And that turns out not to be such an easy task.

I am going to come back to the Nicene Creed, Christmas carols, and like matters by a rather circuitous route. I shall first look at the array of Supreme Court cases that the Court refers to as compelled speech cases. My purpose is to distinguish among them and to separate most from the few that are my concern. I shall then focus on these latter cases and ask if the government acts involved should be regarded as constitutionally problematic, and, if so, why. That question will lead me to examine the possible harms an individual might arguably suffer as a result of being compelled to utter propositions in which she does not believe. And that examination will lead me back to the quotidian examples with which I began.

My conclusion will be anticlimactic, I fear. The harm in compelled speech remains elusive, at least for me. My hope is that some reader more insightful than I will pick up the ball and figure out just where the harm lies. My suspicion, however, is that it will not be easy going.

1. DISTINGUISHING AMONG COMPELLED SPEECH CASES

   As a matter of Supreme Court constitutional doctrine, there are probably four distinct lines of cases that in some sense deal with "compelled speech." First, there is the Barnette/Wooley line, which includes only the two cases to which the name refers. (1) That is the line that interests me and to which I shall return.

   Second, there is the Abood line, in which I include Abood, (2) Keller, (3) Glickman, (4) Southworth, (5) United Foods, (6) and Johannas. (7) These cases are more accurately called "compelled support" cases because they involve compelling some to pay for speech of others with which the former disagree. The harm of compelled support is quite different from whatever harm is involved in the Barnette/Wooley line. The Abood line should really be thought of as cases dealing with the fair distribution of the burden of financing speech in circumstances in which some who are forced to finance it disagree with its content or its necessity. Essentially, these are cases about arbitrary taxation where the taxes are going to pay for speech.

   Take Abood. The question there was whether people forced by law to join a union could be compelled to pay union dues to finance union political speech with which they disagreed. The Court held that although those compelled to join could be further compelled to pay dues to finance collective bargaining activity--from which they derived a benefit, however unwanted--they could not be compelled to finance union political speech. (Keller held the same in the context of compelled membership--with compelled dues--in a state bar association; Southworth held differently with respect to mandatory student fees used to finance campus speakers; and Glickman and United Foods came out both ways with respect to compelled financing of promotions of commodities.)

   In two of the three cases in which the Court found the compelled support violative of the First Amendment--Abood and Keller--any benefit that the speech provided the compelled payors derived from the speech's providing a benefit to the general public and not from its providing a more specific, tangible benefit to compelled payors. Or at least there was no more reason for the compelled payors to finance this speech than there was for others to do so. In Abood, union members who dissented from the union's political views were arbitrarily taxed to support those views. They were arbitrarily taxed because there was no more reason to have them finance the speech than to have, say, owners of diners, Red Sox fans, or neighbors of the union officers support it. The same holds true for Keller and possibly for United Foods, though the latter is a much less clear example.

   The third line of compelled speech cases is the Tornillo line. (8) That line also arguably includes Pacific Gas and Electric, (9) although Pacific Gas and Electric could be looked at as an arbitrary taxation case. (The tax was de minimis, however.) The Court in Tornillo seemed to be worried about whether a right of reply requirement would deter the speech that would trigger that right. If when you attack someone, you are forced to give him a right to reply on your letterhead, you might refrain from attacking him. That was the Court's primary worry in Tornillo.

   Finally, there is the Roberts/Hurley/Dale line of cases involving compelled association, or the "association as speech" cases. (10) The claim in those cases was that the membership criteria of groups were expressive of ideas, and that compelling change in those criteria altered the messages the groups wished to communicate. Now a lot has been and could be said about this line of cases. I, for one, think that although a group may wish to send a message through its membership criteria, and although nondiscrimination laws and the like do alter such messages, there should be no First Amendment objection to outlawing certain membership criteria so long as government's purpose is not itself message related. (11) I may mean to send a "message' by using a sound truck in a residential neighborhood at night to communicate my ideas, or by communicating them through graffiti on others' buildings. My media may be integral parts of my messages. Nevertheless, I have no credible First Amendment objection to laws preventing my use of these media, however message-related they are. (12) The Roberts/Hurley/Dale cases should have been conceptualized by the Court as straightforward freedom of association cases rather than as flee speech cases. (13)

   In any event, this line of cases does not raise the "compelled speech" problem that interests me here. Rather, it is only the Barnette/Wooley line that does so.

2. EXPLAINING BARNETTE AND WOOLEY

   In Barnette, West Virginia required schoolchildren to recite the Pledge of Allegiance even if they (or their parents) objected to the Pledge's content. In Wooley, New Hampshire forbade taping over the state's "Live Free or Die" motto, even if the vehicle owner disagreed with the sentiments expressed. In both cases the Court found a First Amendment violation premised on the existence of compelled speech. But just how did compelling speech in such ways run afoul of constitutional values?

   1. INTERFERENCE WITH AUTONOMY

      The West Virginia and New Hampshire laws surely limited the autonomy of the complaining parties. However, this by itself cannot explain the outcomes. Laws generally limit autonomy, at least in the sense that they prevent people from doing what they would otherwise choose to do. In Wooley, moreover, the law imposed only a negative...