Compelled Speech, Supreme Court

[bonnie1962]

Compelled Speech

By David L. Hudson Jr.

 

The compelled speech doctrine sets out the principle that the government cannot force an individual or group to support certain expression. Thus, the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.

West Virginia State Board of Education is the classic compelled speech case

The Supreme Court’s decision in West Virginia State Board of Education v. Barnette (1943) is the classic example of the compelled speech doctrine at work.

In this case, the Court ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance. The justices held that school children who are Jehovah’s Witnesses, for religious reasons, had a First Amendment right not to recite the Pledge of Allegiance or salute the U.S. flag.

In oft-cited language, Justice Robert H. Jackson asserted, “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.”

 

“Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”

 

Can government force groups to financially support certain programs?

T

In Abood v. Detroit Board of Education (1977), the Court ruled that a teachers’ union had no authority, consistent with the First Amendment, to force dissenting nonmembers to fund activities not germane to the union’s central purpose of collective bargaining.

 

Can government compel private entities to advance its ideas?

Difficulty arises in applying the compelled speech principle when it confronts other principles of First Amendment law, such as the government speech doctrine, which allows the government to advance its own ideas and messages, sometimes even through private entities.

For example, in Johanns v. Livestock Marketing Association (2005), the Court ruled that the government could force beef producers to fund certain generic beef advertisements. The ad said “Funded by America’s Beef Producers,” but the Court reasoned that the overarching message was the government’s, not the individual producers’.