Forced Speech

In times of peril and uncertainty, governments often seek to ensure that all pay obeisance to central tenets of the state. In the 1940s, West Virginia sought to teach school children about democracy and required them to recite the pledge of allegiance. Children of devout Jehovah’s Witnesses objected on grounds that their religion forbade such oaths, and school officials expelled them. In West Virginia v. Barnette, the Supreme Court reversed in ringing tones: ‘‘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.’’

This principle—that the First Amendment prohibits the government from forcing citizens to feign compliance with state orthodoxy—has been extended. When car owners objected on religious grounds to the slogan, ‘‘Live Free or Die,’’ embossed on New Hampshire license plates and covered it, violating state law, the Supreme Court held that the state could not punish the act. Another citizen who wished to distribute literature anonymously was held to have a First Amendment right to do so even though state law required disclosure to avoid anonymous political mud slinging.

Most people recognize the power of social pressure. To one degree or another, we are all pressured to conform to the views and habits of our neighbors, whether those habits consist in wearing fashionable clothes, adhering to implicit codes of behavior (no spitting on the sidewalk; don’t eat with your mouth open), or adopting conventional attitudes about other people or policies. Some conformity is essential to civilized society. We adopt laws requiring people to pay taxes, to drive on the right, and to attend schools until age sixteen. And, while the government may require compliance with many rules of behavior, the First Amendment forbids the government from exacting conformity in belief or speech.

Why does our Constitution permit the government to force people to pay taxes but may not force people to salute the flag? The answer lies in a fundamental understanding that individuals must be left free to think their own thoughts, make their own decisions about what and how to express themselves. In addition, a core principle of a functioning democracy is the citizenry’s freedom from government coercion in their associations and in developing individual ideas and beliefs. Conflicting perspectives, what Barnette called ‘‘intellectual individualism,’’ and preservation of the right to dissent are essential characteristics of a democratic society.

In some instances, the principle has protected media outlets from being forced to publish views it opposed. For example, a Florida statute required newspapers to accord equal space to political candidates who the newspaper had criticized. In Miami Herald v. Tornillo, the Supreme Court held the statute unconstitutional, because it interfered with editorial judgment about what should be published and essentially punished the paper for criticizing politicians. One might also point to the special favoritism granted political candidates as a further support for the outcome of the decision.

In contrast, in Turner Broadcasting, the Court upheld federal law requiring cable operators to carry the signals of local broadcasters. The Court distinguished the Florida case on the ground that the ‘‘trigger’’ for the Florida law was content based— publishing criticism of politicians—whereas here the overriding objective was not to favor one viewpoint over another but the economic one of preserving free television programming regardless of the content of the expression. In enacting the legislation, Congress expressed particular concern that a key communication outlet for large numbers of Americans, local broadcasting, would dry up. The Supreme Court’s decision thus recognized the value of preserving multiple channels of communication.

Although the First Amendment prohibits government from coercing speech, different sets of problems arise when the issue concerns government efforts to break up broadcast monopolies or to remove financial barriers to promote diversity among speakers. For example, the Federal Communications Commission, the agency designated to allocate broadcast licenses in the limited spectrum available, sought to promote fairness by requiring broadcasters to allow persons who had been attacked on air a ‘‘right of reply’’ and further required licensees to promote discussion of public affairs. This ‘‘Fairness Doctrine’’ was unanimously upheld in Red Lion Broadcasting. The Supreme Court reasoned that the government had selected the broadcasters; because the spectrum was scarce, anyone could be attacked on the air without recourse. Furthermore, much of the public would be unable to access the airwaves without regulations providing for public access rights.

A similar result obtained when California required private shopping centers to permit student protestors to set up a table inside their malls over the owners’ objections: California could promote greater diversity of expression in this fashion, and the rule did not infringe the owners’ rights not to express ideas since the owners could post a sign disassociating themselves from the petitioners.

Gay rights activists sought to rely on the ‘‘access’’ line of cases to enforce a Massachusetts Human Rights Commission order that allowed them to march in a privately organized Irish-American parade. The Supreme Court unanimously held that the Commission rule interfered with the First Amendment right of the organizers to express their own message. Although ostensibly enacted to promote equal treatment of a disfavored minority, the Commission’s approach would have supported a ruling by a different agency requiring civil rights marches to include Ku Klux Klan floats.

The distinction between these two lines of cases is that the government may promote access to channels of communication to diversify the voices that may be heard in public spaces provided it neither prescribes the message nor interferes with others’ rights to express their own messages or to disavow association with the speech. Indeed, with increasing concentration of media empires, some have argued that it is even more important to democracy for the government to ensure access to media—especially for those who are unable to purchase such access.

A different set of issues arises when the government compels individuals to give financial support to private organizations with whose ideological positions they disagree. In the Abood case, for example, public sector employees were represented by a union pursuant to a collective bargaining contract with their employer, the Detroit Board of Education. One provision in the contract required non-union members to pay to the union a service fee equal to union dues as a condition of employment.

Some nonunion employees objected to paying the fee because they disapproved of (1) collective bargaining in the public sector and especially (2) ‘‘ideological union expenditures not directly related to collective bargaining.’’ The Supreme Court ruled that mandating fees to support the collective bargaining process was constitutional, but that objecting individuals must be allowed the opportunity to opt out of the ‘‘ideological expenditures.’’ The basis of the distinction between the two types of expenditures has proven to be important in subsequent cases as well.

Mandatory fees to support labor negotiations were constitutional, because otherwise the entire system of collective bargaining would be undermined: nonunion members could free load off the benefits obtained by the union negotiators without paying for them. On the other hand, fees to support ideological causes unrelated to collective bargaining (for example, lobbying expenses) and that were not germane to the collective bargaining process itself could not constitutionally be imposed on objecting members.

The Abood principle was reaffirmed in a case involving mandatory bar dues for lawyers: California could require its attorneys to finance the regulatory apparatus governing lawyers such as bar discipline but could not require objecting attorneys to finance political lobbying by the State Bar organization. But in Southworth, the Court held that the First Amendment permits a public university to charge its students an activity fee to support speech activities by extracurricular student organizations promoting a wide range of ideological views, provided that the program is viewpoint neutral. In contrast to Abood, where the Court was concerned to protect dissenters from being forced to subsidize speech they disagreed with, Southworth recognized that where the purpose of the fee was to ‘‘stimulate the whole universe of speech and ideas’’ it was implausible that individual students would be permitted to ‘‘opt out’’ of such funding mechanisms.

The First Amendment has also been invoked in cases involving advertising of agricultural products. The federal government and some states finance demand- bolstering advertising for agricultural products such as fruit, vegetables, and beef. In one case, fruit growers objected to mandatory assessments ordered by California agricultural authorities for generic advertising of fruit. They attempted to piggyback off the Abood ‘‘ideological’’ branch, arguing that requiring growers to pay for speech they didn’t want was unconstitutional ‘‘compelled speech.’’ However, in the Court’s view, the California marketing arrangement carried no ideological message (which distinguished the case from Abood ). Moreover, the marketing scheme was part of a broader regulation of the market in fruits.

Nonetheless, when mushroom growers challenged a similar program, the growers cleverly argued that their message was that their mushrooms were superior to the generic mushrooms. Thus, remarkably, they persuaded the Court that being made to pay for generic mushroom advertising by an industry association violated their First Amendment rights not to finance ‘‘ideological’’ messages with which they disagreed.

Many scholars saw the mushroom growers’ argument as a smokescreen: the growers simply objected to paying for a government program they disliked, and that funneling the funds through a private association should not have made a difference. However, the mushroom case left open another question: does the First Amendment permit citizens to withhold fees for government advertising programs with whose message they disagree? The Court forestalled this possibility in the Johanns decision, where the governmental agency responsible for generic beef advertising argued that the government itself was ‘‘speaking’’ about the virtues of beef consumption. The Court ruled that beef producers who objected to government-compelled subsidy of the government’s own speech had no valid First Amendment complaint. The mushroom growers case was distinguished on grounds that the growers’ money went to a private association.

In sum, the government may not force an individual personally to adhere to a message he or she disagrees with; nor may the government generally compel an individual to subsidize an ideological message he or she disagrees with, where the message is expressed by a private entity. However, public universities can require students to pay to support ideologically diverse student organizations. And, individuals have no First Amendment right to challenge compelled subsidies of the government’s own message.

JOHN T. NOCKLEBY

References and Further Reading

• Cantor, Norman L., Forced Payments to Service Institutions and Constitutional Interests in Ideological Nonassociation, Rutgers Law Review 36 (1983): 3.
• Klass, Gregory, The Very Idea Of A First Amendment Right Against Compelled Subsidization, University of California at Davis Law Review 38 (2005): 1087.
• Jacobs, Leslie Gielow, Pledges, Parades, And Mandatory Payments, Rutgers Law Review 52 (1999): 123.
• Wasserman, Howard, Compelled Expression And The Public Forum Doctrine, Tulane Law Review 77 (2002): 163.

Cases and Statutes Cited

• Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)
• Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000)
• Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)
• Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)
• Johanns v. Livestock Marketing Association, 544 U.S. __ (2005)
• Keller v. State Bar of California, 496 U. S. 1 (1990)
• McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)
• Miami Herald v. Tornillo, 418 U.S. 241 (1974)
• Pruneyard v. Robbins, 447 U.S. 74 (1980)
• Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969)
• Turner Broadcasting v. FCC, 512 U.S. 622 (1994) (Turner I)
• Turner Broadcasting v. FCC, 520 U.S. 180 (1997) (Turner II)
• United States v. United Foods, Inc., 533 U.S. 405 (2001)
• West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

See also Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Anonymity and Free Speech; Broadcast Regulation; Cable Television Regulation; Content- Based Regulation of Speech; Fairness Doctrine; Federal Communications Commission; Forced Speech; Government Funding of Speech; Government Speech; Gay and Lesbian Rights; Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Pledge of Allegiance and First Amendment; Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969); Shopping Centers and Freedom of Speech; Student Activity Fees and Free Speech; Turner Broadcastings Sys., Inc. v. FCC I & II, 512 U.S. 662 (1994); University of Wisconsin v. Southworth, 529 U.S. 217 (2000); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)