First Amendment — Free Speech Clause: Compelled Speech

Amdt1.7.12.1 Overview of Compelled Speech

For both the religion and speech clauses of the First Amendment, liberty of belief is the foundation of the liberty to practice one’s religion and to express one’s opinions.¹ As the Supreme Court has stated: “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.”² Speaking in the context of religious freedom, the Court said that, although the freedom to act on one’s beliefs could be limited, the freedom to believe what one will “is absolute.”³ Accordingly, as discussed in the following essays, courts will ordinarily subject government actions that compel speech to heightened constitutional scrutiny—but courts will more readily uphold certain types of disclosure requirements, particularly in the commercial context. An earlier essay discussed the Court’s jurisprudence involving disclosures and disclaimers imposed in the context of campaign finance and electioneering regulations.⁴

Amdt1.7.12.2 Flag Salutes and Other Compelled Speech

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 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.¹⁶

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.”¹⁷

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.¹⁸ 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.¹⁹ 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.²⁰

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.²¹ 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.²² 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.”²³

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.²⁴ 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.²⁵ 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.”²⁶

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.”²⁷

Amdt1.7.12.3 Compelled Subsidization

It is to be expected that disputes will sometimes arise between an organization and some of its members regarding the organization’s messaging or expression. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.¹ But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations arising from the First Amendment’s protections for speech and association.² It does not always violate the constitution when compulsory fees are used to subsidize the speech of others.³ However, the Court has recognized constitutional limitations can arise, for example, in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.⁴ The Court has recognized in this context that “‘compelled funding of the speech of other private speakers or groups’ presents the same dangers as compelled speech.”⁵

In Railway Employees’ Dep’t v. Hanson, the Supreme Court upheld the constitutionality of a law authorizing private union shop agreements that required employees to join a union, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment,” such as by being spent to support political candidates.⁶ In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.⁷

The Supreme Court held in Janus v. American Federation of State, County, and Municipal Employees, Council 31, that “public sector agency-shop arrangements violate the First Amendment,”⁸ overruling a forty-year old precedent, Abood v. Detroit Board of Education, that had generally approved of such arrangements.⁹ However, even Abood itself had only permitted some aspects of compelled fee regimes,¹⁰ and the Court had, for years prior to Janus, signaled its growing discomfort with Abood.¹¹ Understanding the historical course of the jurisprudence governing compelled agency fees is important to understand the ramifications of Janus.

In Abood v. Detroit Bd. of Education,¹² the Court found Hanson and Street applicable to the public employment context.¹³ Recognizing that any system of compelled support restricted employees’ right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement¹⁴—the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom.¹⁵ But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. The Court believed that to compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.¹⁶ The Court’s remedy, however, was not to restrain the union from making non-collective bargaining related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.¹⁷ Later, the Court further tightened the requirements. It concluded that a proportionate refund was inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects”;¹⁸ an advance reduction of dues corrected the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee.¹⁹ Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.”²⁰

In Davenport v. Washington Education Ass’n,²¹ the Court noted that, although it had previously outlined the minimum “procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,”²² it “never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require.”²³ Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents.”²⁴ The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.”²⁵

In Knox v. Service Employees International Union,²⁶ the Court suggested constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt-in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic, and described the Court’s prior jurisprudence allowing opt-out provisions as anomalous, in the sense of the burdens it imposed on the constitutional rights of objecting nonmembers. The majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.²⁷

Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn.²⁸ Building on concerns outlined in Knox, the Court expressed reservations about Abood’s central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of “labor peace” and the problem of “free ridership.” Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2) Abood’s failure to appreciate the distinctly political context of public sector unions; and (3) Abood’s dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.²⁹ Notwithstanding these concerns about Abood’s core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These “partial-public employees” were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.³⁰ As a consequence, the Court concluded that Abood’s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union speech.³¹

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court formally overruled Abood and held “that public sector agency-shop arrangements violate the First Amendment.”³² The Court rejected the governmental interests said to justify the compelled fees in Abood, holding instead that labor peace can be achieved through less restrictive means and that the government does not have a “compelling interest” in avoiding free riders.³³ The majority opinion criticized Abood’s extension of Hanson and Street, saying neither of those cases “gave careful consideration to the First Amendment” and arguing that Abood’s reliance on those cases led it to apply an overly deferential standard to analyze public-sector agency fee arrangements.³⁴ In the Court’s view, granting too much deference to legislative judgments about the strength of asserted government interests or about whether the challenged action truly supports those interests “is inappropriate in deciding free speech issues.”³⁵ The Court also disagreed with additional justifications said to justify the agency-shop arrangements, notably holding that they could not be upheld under Pickering v. Board of Education,³⁶ a case in which the Court acknowledged that public employers may sometimes place certain restrictions on employees’ speech.³⁷ Accordingly, after Janus, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.”³⁸

Turning to government restrictions on union support, in Ysursa v. Pocatello Education Ass’n,³⁹ the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union’s First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”⁴⁰

The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.⁴¹