Flag Salutes and Other Compelled Speech

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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.

One question the Supreme Court has considered is whether the government may compel a person to declare or affirm publicly a personal belief. In Minersville School District v. Gobitis,1 the Supreme Court had upheld the power of Pennsylvania to expel from its schools children who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. The Court explained that “[c]onscientious 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.” 2 But three years later, in West Virginia State Bd. of Educ. v. Barnette,3 a 6-3 majority of the Court overturned Gobitis.4 Focusing on the free speech arguments rather than protections for religious exercise, the Court said that the state policy constituted “a compulsion of students to declare a belief,” requiring “the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.” 5 The Court ruled that 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.” 6

The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard,7 which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto “Live Free or Die.” 8 Acting on the complaint of a motorist who again raised religious objections to this statement, 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, at least where the speech was not likely to be identified with the owner and the owner could effectively disavow any connection with the speaker’s message.9

The Supreme Court has also held other governmental efforts to compel speech 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,10 a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records,11 an Ohio statute that prohibited the distribution of anonymous campaign literature,12 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,13 and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.14 The Court also struck down a federal funding condition that required funding recipients to adopt a policy explicitly opposing sex trafficking.15

The Court continued its reliance on Barnette in 303 Creative LLC v. Elenis a decision prohibiting the application of a state nondiscrimination law to a website designer who wished to refuse to design websites for same sex weddings.16 The Colorado Anti-Discrimination Act prohibits “public accommodations” from denying services to individuals based on sexual orientation and other characteristics.17 A website designer who wanted to make wedding websites only for marriages “between one man and one woman” brought a pre-enforcement lawsuit, seeking an injunction to prevent the state from applying this law to punish her for discriminating against same-sex marriages.18 The Supreme Court held that wedding websites are “pure speech” protected by the First Amendment and that enforcement of Colorado’s law requiring creation of wedding websites for same sex marriages would impermissibly compel speech.19

The principle of Barnette, however, does not extend so far as to bar a government from requiring employees or certain persons seeking professional licensing or other benefits to swear an oath that they will uphold and defend the Constitution.20

In contrast to the arguably political speech at issue in Barnette, 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,” and accordingly, a provision requiring a seller to disclose factual information about his goods or services will not violate the First Amendment so long as the requirement is “reasonably related to the State’s interest in preventing deception of consumers.” 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 a permissible 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 only applies to requirements that sellers 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 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 rejected a First Amendment challenge 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 emphasized that “Congress did not prohibit, edit, or restrain the distribution of advocacy materials,” but only “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: 310 U.S. 586 (1940).
2: 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.
3: 319 U.S. 624 (1943).
4: Justice Felix 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 Stanley Reed simply noted their continued adherence to Gobitis. Id. at 642.
5: 319 U.S. at 631, 633.
6: Id. at 633, 634. See also Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 9 (U.S. June 2018) (noting that compelled speech imposes a distinct harm by “forcing free and independent individuals to endorse ideas they find objectionable” ).
7: 430 U.S. 705 (1977).
8: The state had prosecuted vehicle owners who covered the motto on their vehicle’s license plate.
9: See PruneYard Shopping Ctr. 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).
10: Riley v. Nat’l Fed’n of the Blind of N.C., 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 eight-five 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.
11: Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & Elec. Co. v. Pub. Utils. 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.
12: McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).
13: Hurley v. Irish-Am. Gay Grp., 515 U.S. 557 (1995).
14: See Nat’l Inst. of Family and Life Advocs. v. Becerra, 585 U.S. ___, No. 16-1140, slip op. at 7 (U.S. June 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).
15: Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 221 (2013). For additional discussion of this case, see Amdt1.7.13.9 Conditions Exceeding the Scope of the Program.
16: No. 21-476 (U.S. June 30, 2023).
17: Id. at 3 (citing Colo. Rev. Stat. § 24-34-601(1) (2022)).
18: Id. at 2–3.
19: Id. at 9–11.
20: 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. Bd. 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); L. Students C.R. Rsch. 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). For additional discussion of cases involving employee oaths, see Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech and Amdt1.8.2.3 Denial of Employment or Public Benefits.
21: Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 651, 652 n.14 (1985). See Milavetz, Gallop, & Milavetz v. United States, 559 U.S. 229 (2010) (requiring advertisement for certain “debt relief” businesses to disclose that the services offered include bankruptcy assistance). For additional discussion of the Court’s treatment of commercial speech, see Amdt1.7.6.1 Commercial Speech Early Doctrine.
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 Advocs. v. Becerra, No. 16-1140, slip op. at 8 (U.S. June 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).