Coerced Speech
The Issue:  Does the First Amendment allow the government to compel individuals to make expressive statements?
In 1935, the flamboyant leader of Jehovah's Witnesses, Joseph Rutherford, declared that saluting the American flag violated the Biblical command against worshiping graven images, and urged his followers not to do so.  Rutherford's call would lead to two U. S. Supreme Court decisions considering whether states could demand flag salutes from public school children.  In 1941, in the midst of World War II, the Court announced its 8-1 opinion in Minersville School District vs Gobitis, upholding a Pennsylvania school district's decision to expel three Jehovah's Witnesses who refused to salute the flag.  The Court's decision was criticized by Eleanor Roosevelt and over 170 newspaper editorialitst. Then, just two years later in West Virginia vs Barnette, the Court reversed itself and ruled 6-3 that West Virginia's decision to expel students who refused to salute the flag violated the First Amendment.  (The startlingly quick overruling of Gobitis came as the result of three justices--Douglas, Black, and Murphy-- switching their votes and two new justices, Robert Jackson and Wiley Rutledge, joining the Court.)  Justice Jackson's opinion for the Court saw inconsistency in an interpretation of the First Amendment that "guards the individual's right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind."

In 1977, the Court considered another compelled speech claim, this one brought by a New Hampshire couple who had three times been prosecuted for covering up the motto "Live Free or Die" on their New Hampshire license plate.  The Maynards, also Jehovah's Witnesses, objected on religious grounds to the ideological message conveyed on the state license plates.  Writing for the Court, Chief Justice Burger enjoined enforcement against the Maynards of New Hampshire's law prohibiting the obscuring or defacing of license plates.  The law, the Court said, compelled individuals to be "couriers for ideological messages" and "mobile billboards."

In 1980, in Pruneyard Shopping Center vs Robins, the Supreme Court rejected the argument of the owner of a California Shopping Center that a California Supreme Court decision finding a state constitutional right of third persons (in this case, high school students) to pass out political leaflets on the shopping center grounds violated the federal Constitution's First Amendment.  The owner argued, relying on Wooley and Barnette, that his property was being used in such a way as to suggest his endorsement of a political message that he may not have agreed with.  The Court disagreed, concluding under the circumstances of the case that no one was likely to conclude that the shopping center was a sponsor or an endorser of the political message being presented in the shopping center parking lot.

In 2006, in Rumsfield v Forum for Academic and Institutional Rights, the Supreme Court considered the claim of various law schools that the Solomon Amendment, which withheld federal funds for schools discriminating against military recruiters, violated their First Amendment rights.  The schools argued, among other things, that the law compelled them to support speech (i.e., military recruiting on their premises that was inconsistent with their belief that employers should not discriminate against homosexuals) with which they disagreed.  In a unanimous (8 to 0) decision, the Court rejected the schools' arguments.  Justice Roberts noted that the law doesn't make the schools say anything (and in fact allows them to disassociate themselves from the military recruiters' message by organizing protests or boycotts) and regulates conduct more than it does speech.

The Court extended the compelled speech doctrine in the important 2018 case of Janus v American Federation of State, Local, and Municipal Employees.  In a 5 to 4 decision, the Court overrule a precedent case from 1977 that held that public employee unions could require employees who chose not to join the union to make a financial contribution (less than the normal union dues) to cover the cost of the union representing the employee in collective bargaining.  The fee was said to be justified as a measure designed to keep union peace and avoid the "free-rider" problem of employees getting the benefit of union negotiations without paying for any of the cost.  Writing for the Court in Janus, Justice Alito said that forcing employees to subsidize speech (union positions regarding negotiation and what state fiscal policy with respect to employees should be) is a form of compelled speech.  The Court held that neither of the main justifications for the fees were sufficiently compelling to support the policy.  Unions worried that the effects of Janus will be very harmful to the union movement.

Does it violate the compelled speech doctrine if Colorado requires a baker to make a wedding cake for a same-sex couple?  Baker Jack Williams says it violates his First Amendment rights because he believes such a wedding is contrary to biblical teaching.  Williams also refuses to make cakes for Halloween or cakes that celebrate atheism or racism.  (In addition to his free speech argument, Williams claims the Colorado law violates his free exercise of religion.)  The Supreme Court will take up Williams's claim in the 2017-2018 term.


Marie and Gathie Barnette, two of the petitioners in West Virgina v Barnette, a challenge to a West Virginia law
 requiring school children to salute the American flag.

The Cases
West Virginia Bd. of Educ. vs. Barnette (1943)
Wooley vs. Maynard (1977)
Pruneyard Shopping Center vs. Robins (1980)
Rumsfield v Forum for Academic Rights (2006)
Janus v American Federation of State, Local, & Municipal Employees (2018)

"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."
--Justice Robert Jackson (West Va. vs Barnette)

Mark Janus is cheered by supporters near the steps of the Supreme Court


1.  It was also argued that the flag salute requirement violated the Free Exercise rights of the Jehovah's Witnesses.  What would have been the consequences of deciding the case on Free Exercise rather than Free Speech grounds?
2.  How significant would you rate the government's interest in forcing school children to salute the flag?
3.  What do you think of Justice Frankfurter's dissent in Barnette, arguing that the Court should only determine whether the State had a reasonable justification for its requirement?
4.  Is anyone likely to take the Maynards' showing of an unobstructed "Live Free or Die" motto as an indication that they endorse that message?
5.  Couldn't the Maynards disavow the objectionable motto by placing an "I-Don't-Believe-the-Message-Below" sign above the license plate?
6.  If an Idaho citizen found the Idaho license plate motto "Famous Potatoes" to be silly, would he or she have a constitutional right to cover the motto, or does the right recognized in Wooley extend only to mottos found to be ideologically objectionable?
7.  Would Pruneyard have been decided differently if California had compelled the owner of a stand-alone store to allow political leafletters to use his or her property?
8.  Is the state's interest in allowing private citizens to use shopping centers for political expression considerably stronger than the state interest in Wooley, promoting a state motto on license plates?
9.  In 1999, Louisiana enacted a law that allowed state residents to buy a license plate with the message "Choose Life" (see photo).  Abortion rights organizations challenged the law on First Amendment grounds.  The issues raised by the Louisiana case are very different than those presented in Wooley.  Does the Louisiana "Choose Life" plate violate the First Amendment?  (In July, 2003, a federal district judge ruled that Louisiana's system of speciality plates violated the First Amendment because it allows the anti-abortion plates but does not provide one for the opposite viewpoint.)
10.  If  the Solomon forbid law schools--upon pain of losing federal funding--from in any way protesting the presence on their campuses of military recruiters, would the law then violate the schools' First Amendment rights?

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