Compelled Speech: Overview

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.1 “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.” 2 Speaking in the context of religious freedom, the Court said that, although the freedom to act on one’s beliefs could be limited, the freedom to believe what one will “is absolute.” 3 But matters are not so simple.

One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Gobitis,4 the Court had upheld the power of Pennsylvania to expel from its schools certain children —Jehovah’s Witnesses—who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” 5 But three years later, in West Virginia State Bd. of Educ. v. Barnette,6 a six-to-three majority of the Court overturned Gobitis.7 Justice Jackson, writing for the Court, chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted “a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.” 8 The power of a state to follow a policy that “requires affirmation of a belief and an attitude of mind,” however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual “creates a clear and present danger that would justify an effort even to muffle expression.” 9

The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard,10 which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto “Live Free or Die.” 11 Acting on the complaint of a Jehovah’s Witness, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment.12 Nor was there a constitutional violation where compulsory fees were used to subsidize the speech of others.13

Other governmental efforts to compel speech have also been held by the Supreme Court to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,14 a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records,15 an Ohio statute that prohibited the distribution of anonymous campaign literature,16 a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message—in this case support for gay rights – that the organizers did not wish to convey,17 and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.18

The principle of Barnette, however, does not extend so far as to bar a government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.19 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.20

By contrast, the Supreme Court has at times found no First Amendment violation when government compels the disclosure of information in a commercial or professional setting. Regarding compelled disclosures in commercial speech, the Court held that an advertiser’s “constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right.” 21

Moreover, the Court has upheld regulations of professional conduct that only incidentally burden speech. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court considered a law requiring physicians to obtain informed consent before they could perform an abortion.22 Specifically, the law at issue in Casey required doctors to tell their patients prior to an abortion about the nature of the procedure, the health risks involved, the age of the unborn child, and the availability of printed materials from the state about various forms of assistance.23 In a plurality opinion, the Court rejected a free-speech challenge to the informed consent requirement, viewing the law as “part of the practice of medicine” and an incidental regulation of speech.24

However, the Court has cautioned that reduced scrutiny for compelled commercial and professional speech is limited to particular contexts. For example, limited scrutiny of compelled commercial disclosures is restricted to requirements that professionals provide “purely factual” and “uncontroversial information” in their commercial dealings.25 As a result, in considering the constitutionality of a California law requiring certain medically licensed, pro-life crisis pregnancy centers to disclose information to patients about the availability of state-subsidized procedures, including abortions, the Court in National Institute of Family and Life Advocates v. Becerra concluded that the Zauderer rule for compelled disclosures of purely factual, uncontroversial information was inapplicable.26 Specifically, the Court noted that the notice requirements were unrelated to services that the clinics provided and that the notice included information about abortion, “anything but an ‘uncontroversial’ topic.” 27

In that same ruling, the Court rejected the argument that the California law’s disclosure requirements were comparable to the informed consent regulations upheld in Casey.28 In contrast to the law in Casey, the National Institute of Family and Life Advocates Court concluded that the disclosure requirements were not tied to a particular medical procedure and did not require the disclosure of information about the risks or benefits of any medical procedures the clinics provided.29 In this sense, the California law, unlike the informed consent law in Casey, did not incidentally burden speech, but instead “regulat[ed] speech as speech.” 30

The Supreme Court has also found no First Amendment concern with respect to the compelled labeling of foreign political propaganda. Specifically, in Meese v. Keene, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign “political propaganda,” he must label such material with certain information, including his identity, the principal’s identity, and the fact that he has registered with the Department of Justice. The Court found that “Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.” 31

1: West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); American Communications Ass’n v. Douds, 339 U.S. 382, 408 (1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357 U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5–6 (1971), and id. at 9–10 (Justice Stewart concurring).
2: West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
3: Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
4: 310 U.S. 586 (1940).
5: 310 U.S. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of “these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” Id. at 601.
6: 319 U.S. 624 (1943).
7: Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court “to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.” 319 U.S. at 646, 647. Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at 642.
8: 319 U.S. at 631, 633.
9: 319 U.S. at 633, 634. See also Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ____, No. 16-1466, slip op. at 9 (2018) (noting that compelled speech imposes a distinct harm by “forcing free and independent individuals to endorse ideas they find objectionable” ).
10: 430 U.S. 705 (1977).
11: The state had prosecuted vehicle owners who covered the motto on their vehicle’s license plate.
12: As to the question of whether one can be required to allow others to speak on his property, compare the Court’s opinion in PruneYard Shopping Center v. Robins, 447 U.S. 74, 85–88 (1980) (upholding a state requirement that privately owned shopping centers permit others to engage in speech or petitioning on their property) with Justice Powell’s concurring opinion in the same case, id. at 96 (would limit the holding to situations where a property owner did not feel compelled to disassociate themselves from the permitted speech).
13: The First Amendment does not preclude a public university from charging its students an activity fee that is used to support student organizations that engage in extracurricular speech, provided that the money is allocated to those groups by use of viewpoint-neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 529 U.S. 217 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds). Nor does the First Amendment preclude the government from “compel[ling] financial contributions that are used to fund advertising,” provided that such contributions do not finance “political or ideological” views. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). But, for compelled financial contributions to be constitutional, the advertising they fund must be, as in Glickman, “ancillary to a more comprehensive program restricting marketing autonomy” and not “the principal object of the regulatory scheme.” United States v. United Foods, Inc., 533 U.S. 405, 411, 412 (2001) (striking down Secretary of Agriculture’s mandatory assessments, used for advertising, upon handlers of fresh mushrooms). The First Amendment is, however, not violated when the government compels financial contributions to fund government speech, even if the contributions are raised through a targeted assessment rather than through general taxes. Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005).
14: Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who has retained 85 percent of gross receipts from donors, but falsely represented that “a significant amount of each dollar donated would be paid over to” a charitable organization, could be sued for fraud.
15: Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986), a Court plurality held that a state could not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees.
16: McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
17: Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995).
18: See Nat’l Inst. of Family and Life Advocates v. Becerra, 585 U.S. ___, No. 16-1140, slip op. at 7 (2018). Specifically, in National Institute of Family and Life Advocates v. Becerra, the Court reviewed a California law that, in relevant part, required medically licensed crisis pregnancy centers to notify women that the State of California provided free or low-cost services, including abortion. Id. at 2–4 (describing the California law). For the Court, “[b]y requiring [licensed clinics] to inform women how they can obtain state-subsidized abortions—at the same time [those clinics] try to dissuade women from choosing that option,” the California law “plainly alters the content” of the clinics’ speech, subjecting the law to heightened scrutiny. Id. at 7 (internal citations and quotations omitted).
19: Cole v. Richardson, 405 U.S. 676 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-judge court), aff’d, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff’d, 390 U.S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court), aff’d, 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff’d per curiam, 414 U.S. 1148 (1974).
20: Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
21: Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985). See Milavetz, Gallop, & Milavetz v. United States, 559 U.S. ___, No. 08-1119 (2010), slip op. at 19–23 (requiring advertisement for certain “debt relief” businesses to disclose that the services offered include bankruptcy assistance).
22: See 505 U.S. 833, 881 (1992) (plurality opinion).
23: Id.
24: Id. at 884.
25: See, e.g., Nat’l Inst. of Family and Life Advocates v. Becerra, 585 U.S. ___, No. 16-1140, slip op. at 8 (2018).
Moreover, even under Zauderer, commercial disclosure requirements cannot be unjustified or unduly burdensome. See 471 U.S. at 651. Applying this limit on the Zauderer rule, the National Institute of Family and Life Advocates Court reviewed a separate provision of the California law discussed above that required unlicensed crisis pregnancy centers to notify women that California has not licensed the clinics to provide medical services. Id. at 4–5 (describing the requirements for the unlicensed centers). The Court, noting the lack of evidence in the record that pregnant women were unaware that the covered facilities were not staffed by medical professionals and remarking on the breadth of the regulations that required a posting of the notice “no matter what the facilities say on site or in their advertisements,” concluded that the regulations of unlicensed crisis pregnancy centers unduly burdened speech. Id. at 18–19.
26: Id. at 9.
27: Id.
28: Id. at 11.
29: Id.
30: Id. Having concluded that the California disclosure requirements for licensed crisis pregnancy centers should be evaluated under a more rigorous form of scrutiny than what the Court employed in Zauderer or Casey, the National Institute of Family and Life Advocates Court, employing intermediate scrutiny, held that the California law likely violated the First Amendment. Id. at 14. Specifically, the Court viewed the law to be both underinclusive—the law excluded several similar clinics without explanation—and overinclusive—the state could have employed other methods, such as a state-sponsored advertising campaign, to achieve its purpose of informing low-income women about its services without “burdening a speaker with unwanted speech.” Id. at 14–16 (internal citations omitted).
31: Meese v. Keene, 481 U.S. 465, 480 (1987).

Flag Salutes and Other Compelled Speech