Seeing the No-compelled-speech Doctrine Clearly Through the Lens of Telescope Media
| Publication year | 2021 |
99 Nebraska L. Rev. 58. Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media
Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media
Richard F. Duncan [*]
TABLE OF CONTENTS
I. Introduction .......................................... 59
II. The No-Compelled-Speech Doctrine: A Summary of the Supreme Court's Jurisprudence ....................... 60
A. Justice Jackson's Iconic Opinion in Barnette ....... 61
B. Wooley and Libertarian Authoritarianism .......... 62
C. When Government Treats Speech as a Public Accommodation: Hurley's Unanimous Decision ..... 64
D. Justice Kennedy Reaches Across Time to Unite with Justice Jackson ................................... 65
III. A Careful Reading of Telescope Media ................. 66
A. Stras Versus Kelly: Regulation of Speech or Conduct? .......................................... 69
B. Stras Versus Kelly: Content-Neutral or Content-Based Law? ....................................... 71
C. Stras Versus Kelly: Strict Scrutiny/Compelling Interest Test ...................................... 73
IV. Defending the Reasoning of Telescope Media's Compelled Speech Decision ............................ 74
A. The No-Compelled-Speech Doctrine Applies when "A" Is Compelled to Speak, Create, or Help Disseminate the Message of "B" ................... 75
B. Compelled Speech Under Public Accommodation Laws Is Usually Viewpoint-Based, and Certainly Not Content-Neutral .............................. 77
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C. Herein of Compelling Interests and Relative Harms ............................................ 79
D. The Race Analogy Does Not Apply to Wedding Vendors and Compelled Speech Cases ............. 81
V. Conclusion ............................................ 84
I. INTRODUCTION
It is better to have too much freedom of speech than too little. Freedom of thought, belief, and speech are fundamental to the dignity of the human person. When the law strikes at free speech it hits human dignity-the right of a person to express what he believes to be true. What is even worse, when the law compels a person to say that which he believes to be untrue, the blade cuts deeper because it requires the person to be untrue to himself, perhaps even untrue to God.
We live in an era of increasing instances in which government compels persons to say things they believe are untrue or are contrary to their religious conscience. For example, in recent years government has required: (1) pro-life pregnancy centers to provide clients with information about how to obtain "free or low-cost" abortions; [1] (2) a wedding cake artist to create wedding cakes celebrating same-sex weddings; [2] (3) a florist to create floral arrangements celebrating same-sex weddings; [3] (4) a wedding photographer to take photographs of same-sex weddings; [4] (5) calligraphers to create wedding invitations for same-sex weddings; [5] and (6) a printing and graphic design business to print t-shirts celebrating a local gay pride festival. [6]
Although the Supreme Court has a long history of protecting persons against laws compelling speech, [7] until recently expressive wedding vendors have been denied this protection. [8] However, the
2prevailing winds have started to shift, and cake artists, [9] videographers, [10] and wedding-invitation artists [11] all have prevailed against compelled speech requirements in the last two years.
The purpose of this Article is to take a close look at what has become the leading case on the right of expressive wedding vendors to resist speech compulsions-the Eighth Circuit's decision in Telescope Media Group v. Lucero. [12] First, I will briefly describe the Court's longstanding doctrine protecting persons against compelled speech requirements. I will then take a careful look at the holding and reasoning of Telescope Media. Finally, I will suggest that Judge Stras's majority opinion in Telescope Media is very persuasive and that the arguments against applying the no-compelled-speech doctrine to commercial wedding vendors are not persuasive.
II. THE NO-COMPELLED-SPEECH DOCTRINE: A SUMMARY OF THE SUPREME COURT'S JURISPRUDENCE
Compelled speech is unconstitutional. Of this there can be no doubt. [13] In an earlier work, I stated the Court's no-compelled-speech rule as follows: "[U]nder the Free Speech Clause government may not compel a person to express or disseminate any belief, creed, or statement of values, whether it is the government's own message or the message of a third-party." [14] Or, in the words of one of the leading First Amendment scholars, Professor Eugene Volokh, "Government coercion is presumptively unconstitutional . . . when it compels people to speak things they do not want to speak." [15]
Although there are numerous Supreme Court cases focusing on the no-compelled-speech doctrine in many different contexts, [16] in this section of this Article I will focus on what I consider to be the canon of the
3Court's jurisprudence of compelled speech: West Virginia State Board of Education v. Barnette, [17] Wooley v. Maynard, [18] Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, [19] and NationaI Institute of Family & Life Advocates v. Becerra (NIFLA). [20]
A. Justice Jackson's Iconic Opinion in Barnette
Although Barnette is often referred to as the Court's "flag salute" decision, it is actually the Court's second flag salute decision. The first, Minersville School District v. Gobitis, [21] was an 8-1 decision which held that it was constitutional for a public school to expel students who refused to salute the flag based upon their sincerely held religious beliefs. [22] Gobitis was decided under the Free Exercise Clause, not the Free Speech Clause. [23] Less than three years after the decision in Gobitis, the Court decided an almost identical case-one involving Jehovah's Witness schoolchildren expelled from public school for conscientiously refusing to salute the flag [24] -but this time the Court focused on the free speech rights of all students, not merely the free exercise rights of religiously-motivated students. [25]
In one of the most lyrical and powerful opinions ever handed down by any court, Justice Jackson made it clear that the right of free speech includes the right not to be compelled to speak. "To sustain the compulsory flag salute," said Justice Jackson, "we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." [26] Jackson's justification for the no-compelled-speech doctrine was the overriding importance of "intellectual individualism" and the right to resist "[c]ompulsory unification of opinion." [27] Jackson denounced "village tyrants" [28] who wish to "coerce
4uniformity of sentiment" [29] and composed a powerful manifesto against authoritarian government that is as relevant in 2020 as it was in 1943:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control. [30]
Thus, for the government to compel schoolchildren to salute the flag is tyrannical and even worse than compelled silence because it invades the private space of one's mind and beliefs. [31] As Professor Robert George has said: "Ordinary authoritarians are content to forbid people from saying things they know or believe to be true. Totalitarians insist on forcing people to say things they know or believe to beuntrue." [32]
So was born the no-compelled-speech doctrine which protects the right not to speak from authoritarian government and village tyrants. Every age has its village tyrants, and our age seems to have more than its fair share. Thus, Barnette and its progeny may be more important today than ever before.
B. Wooley and Libertarian Authoritarianism
Although it was once possible to read Barnette as only prohibiting government from compelling affirmations of belief, such as by saluting the flag, it soon became clear that the no-compelled-speech doctrine also forbids government from compelling the dissemination of unwanted expression. Thus, under the Free Speech Clause, government may not compel a person to express or disseminate any belief, creed, or statement of values, whether it is the government's own message or the message of a third-party. [33]
In 1977, forty-four years after its decision in Barnette, the Supreme Court decided Wooley v. Maynard. [34] The facts of Wooley tell an...
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