Compelled Speech

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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 acute if an institution whose essential function is expression claims that it is being coerced to speak because the government directs it to admit unwanted expression or speakers to its own expressive voice (as in the case of the sponsor of a parade), or to give access to its facilities for expression (as the print or electronic media) to persons whose expressions it does not wish to be associated with or to enable. For some expressive organizations, like a parade's sponsor or a political or ideological group, the special value of aggregating funds or voices for the purpose of expression may be sacrificed if the effect of such required admission is to dilute or alter the expression they wish to utter. For others, like the print or broadcast media, the effect of the requirement may be less costly. This may explain why compelling the parade sponsors to include an unwanted participant's speech is held to be unconstitutional, but compelling inclusion in the media sometimes is unconstitutional (as when allowing others' expression may have an inhibiting effect on the medium's expression) and sometimes is constitutionally permitted; particularly in the case of a broadcasting medium that originates and exists more as a carrier than a voice, in a framework of expressly government-granted power. The question of compelling such speech in cyberspace remains to be examined.

The special value of purposefully aggregated voice is not sacrificed if the institution's essential function is not expression and the government should require it either to convey expression that it does not wish to convey, as in the case of shopping center owners who are forbidden by state law from excluding leafleters; or public utility corporations that send out communications or bills and are required by the state to let other speakers insert related public messages in the unfilled envelope space; or organizations such as the Chamber of Commerce or Rotary Club who want to exclude from membership persons with potentially contrary voices but are forbidden to do so by state civil rights laws. Those persons or institutions can vent their expression by other means without materially diminishing achievement of their essential nonexpressive functions. As the different outcomes in the shopping mall case, where the state's regulation was upheld, and the envelope case, where it was denied, suggest, the closeness with which the contribution mechanism publicly associates the forced contributor with the making or content of the expression may determine whether the speech is unconstitutionally coerced. The Chamber of Commerce, the Rotary Club, and the parade cases illustrate the difficulty in formulating criteria for separating "essentially" expressive from "essentially" nonexpressive institutions.

A variation of the problem derives from a nonexpressive institution requiring persons to pay dues and then using the dues to fund expression that those persons do not want to express or to be expressed. For the institution's expression to be considered unconstitutionally compelled speech by the contributor, the institutional power to require the contribution must be sufficiently attributable to special government (legislative) empowerment of the institution to acquire membership or funding for its nonexpressive function, as in the case of an integrated bar association that can exclude nonmembers from the practice of law, or a union empowered to enforce a union shop or agency shop agreement that can exclude from employment those who decline to join or contribute. In contrast, the contribution (i.e., speech) does not appear to be viewed by the courts as unconstitutionally compelled if it is required by the "private" power of a voluntary bar association or possibly a local medical society to acquire membership—even though each has the power to deny access to vital earning facilities or privileges to persons who decline to pay dues that will fund the association's speech. The Supreme Court offers few clues as to what separates government-driven private compulsion from "purely" private compulsion in a society in which any institution's coercive power derives from the entire structure of government support embodied in the allocation of rights and duties by law. Moreover, the Court has not explained why, or by what criteria, the group's speech should be imputed to the contributor at the cost of pro tanto abridging the speech of the group and its other members, as when state universities impose extracurricular activities fees, some of which go to student groups supporting policies that some contributors wish not to support. Nor has it squarely addressed the problem of the extent of government power to protect an individual member's freedom from compelled expression by abridging the expression of a "private" nonexpressive institution, like a business corporation, funded by contributions that are not freely given for expression.

In any event, not all institutional expression that can be imputed to a coerced contributor is protected, or equally protected, speech—as the distinctions between the kinds of speech permitted and prohibited by compelled funding in the union shop and integrated bar cases indicate. The point was made, perhaps more sharply, in Glickman v. Wileman Brothers and Elliott Inc. (1997), which involved expression by a trade association (generic advertising of the virtues of an industry's product) that was an integral component of a comprehensive government-sponsored economic program for the industry, under which industry members were required to make payment to the association. The Court ruled that the member's contributions to the association's advertising were not to be characterized as compelled speech by the member. But it is not entirely clear whether the opinion deemed the complainant's contribution to be insufficiently tied to the particular expression to impute it to the contributor; or, alternatively, deemed the tie to be close enough to make the expression coerced but deemed the expression not to be protected speech. Similarly, it is unclear from this opinion how a court should measure and balance either the sufficiency of the tie between contribution and expression or the extent to which the particular expression is entitled to be considered protected speech.

A pervasive problem, for which the Court's opinions give no clues, implicates the extent to which the constitutional limits on government coercion of speech are, or should be, less rigorous than the constitutional limits on government prohibition of speech—for example, to what extent, and by what criteria, government prohibition of political expenditures or of solicitation of favorable treatment from officeholders should be more critically scrutinized (and less tolerated) by courts than government compelling disclosure in such matters.

Victor Brudney

(see also: Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston; PruneYard Shopping Center v. Robins.)