Tag Archives: compelled speech

Can Government Compel Factual Speech?

One of my all-time favorite Supreme Court decisions is West Virginia Board of Education vs. Barnette. That 1943 case was brought by Jehovah’s Witness families whose children had been punished by their public school for a refusal to salute the flag–a refusal based upon their religion, which forbids such a salute as idolatry. Despite the religious basis of their refusal, the case was decided on free speech grounds, with Justice Robert Jackson penning words that would would be repeatedly quoted.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. .

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. If there are any circumstances which permit an exception, they do not now occur to us.

The case established the principle that freedom of speech includes freedom from government-compelled speech. Now,  corporations opposed to disclosures mandated by agencies of government, are asserting that principle in order to avoid making required disclosures.

These companies are challenging regulations that require them to disclose emissions or inform the public of other data relevant to consumer and public health protections. They are claiming these regulations are unconstitutional–that they violate the compelled speech doctrine, which they assert protects them from government mandates forcing citizens to say something they disagree with.

Experts say the large corporations using this strategy are undermining efforts to regulate corporate behavior. They say these arguments limit states’ ability to act on matters not covered by federal law — and threaten everything from consumer warnings on toxic products to nutrition labels for restaurant food.

This argument is currently being used to challenge California’s emissions disclosure law, which requires companies doing business in the state to disclose how much pollution they create throughout their supply chain. Challengers argue that such laws unfairly compel them to engage in “controversial speech” — and argue that climate change is still controversial.

Right-wing groups have weaponized this “compelled speech” argument before, using it to defend organizations that refuse to give their employees adequate reproductive health care benefits and support unlicensed pregnancy centers that intentionally mislead their clients. The argument has impeded the government’s ability to investigate financial wrongdoing. Foreign kleptocrats and domestic companies have allegedly exploited this lack of transparency to launder money through real estate investments and shell companies.

Corporations are employing the argument in a wide variety of situations– from concealing the source of online political advertisements, to deterring states from addressing climate change. These efforts are being spearheaded by trade groups intent upon reducing or evading regulation, and the approach includes social media platforms.

A pending decision in the U.S. Supreme Court involving the strategy could decide the future of all social media platforms.

An advocacy group funded by Meta, Google, X (formerly Twitter), and other tech companies challenged a number of laws in Texas and Florida that would regulate how large social media companies control content posted on their sites. The companies argue that choosing the type of content that appears on their platforms is an editorial decision, and therefore protected by the First Amendment.

An amicus brief filed by the Knight First Amendment Institute at Columbia University, an educational organization that researches and promotes freedom of speech, points out that accepting the social media platforms’ argument would make it extremely difficult, if not impossible, for governments to govern user privacy, promote competition, and ensure smooth information exchange.

If the current Supreme Court majority included Justices who shared Robert Jackson’s intellect and ethical probity, rather than corrupt ideologues like Alito and Thomas, we could anticipate issuance of a decision carefully analyzing the difference between compelling the endorsement of beliefs and opinions, and requiring the disclosure of facts –the difference between respecting the integrity of conscience and facilitating the misleading of consumers.

The law often requires drawing intellectually-defensible lines–something the current Court majority seems incapable of understanding–or doing.

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Abortion, Free Speech And Crime

It turns out there really is no such thing as a “single issue.” Life and reality are complicated. And inter-related.

Leave aside, for purposes of today’s discussion, the inconvenient historical research confirming that the real impetus of the “pro-life” movement was the desire to protect segregation, not fetuses. Leave aside also the breathtaking hypocrisy of people who obsess over those “unborn babies” but are entirely unconcerned about toddlers in cages at the border, the children drinking unsafe water in Flint and elsewhere, the children without enough to eat….Etc.

Let’s just talk about those dots we Americans don’t like to connect.

Let’s begin with free speech. Almost everyone claims to be a staunch believer in free speech–until, of course, someone is saying something with which they disagree, or even worse, fails to say something we want them to say. In North Dakota, lawmakers have passed a law to “protect the unborn” by requiring doctors to lie to their patients.

That was a bridge too far even for the famously timid and nonpolitical American Medical Association.

One of America’s leading medical organizations has filed a lawsuit to block a North Dakota abortion law requiring doctors to tell women that a medication-induced abortion can be “reversed,” an assertion medical experts say is scientifically unsound.

The American Medical Association has joined the Red River Women’s Clinic, the last abortion facility in the state, and its medical director, Kathryn Eggleston, to argue that the law violates doctors’ constitutional right to free speech by forcing them to lie to patients. The plaintiffs also contest an existing provisionin North Dakota law that requires a doctor to tell a woman that the abortion will “terminate the life of a whole, separate, unique, living human being,” a statement they argue is ideologically biased and “forces physicians to act as the mouthpiece of the state.”

It’s the second time this year the AMA has sued over an abortion-related issue. In March, the organization filed a lawsuit in Oregon over a provision in the Trump administration’s new rules for the federal family planning program–rules that would, among other things, ban doctors and other health professionals from referring pregnant patients for abortions.

I can’t help wondering why we haven’t heard from all those opponents of national health care who are terrified of government control over their medical providers.

It isn’t just that efforts to deny women personal autonomy require intrusions–infringements–of other constitutional liberties. There are equally inconvenient sociological “dots” to connect as well.

Crime rates in the U.S. have fallen by about halfsince the early 1990s. A new working paperfrom the National Bureau of Economic Research finds that legalized abortion following the Supreme Court’s landmark Roe v. Wade decision in 1973 accounts for 45% of the decline in crime rates over the past three decades.

The paper’s authors, Stanford University economist John Donohueand University of Chicago economist Steve Levitt, take new data and run nearly the same model they used in their influential — and controversial — 2001 analysispublished in the Quarterly Journal of Economics, where they first suggested an association between abortion and crime.

In the 2001 paper, they found that legalized abortion appeared to account for up to half of the drop in rates of violent crime and property crime to that point. They also predicted crime would fall an additional 20% over the next two decades. Levitt featured the research in the 2005 bestseller Freakonomics. The new paper also looks at violent crime and property crime.

When you think about it–assuming you do think about it– it makes sense. As the authors put it, “unwanted children are at an elevated risk for less favorable life outcomes on multiple dimensions, including criminal involvement, and the legalization of abortion appears to have dramatically reduced the number of unwanted births.”

The authors examine crime in states that legalized abortion before Roe; crime in states with high and low abortion rates after Roe; differences in crime patterns in states among people born before and after Roe; and differences in arrest rates within states among people born before and after Roe.

If we really wanted to reduce the number of abortions, we would create a society that supported women and nurtured children–a society in which birth control was easily obtainable and babies were not additional, resented burdens to impoverished mothers.

But that might require connecting some dots……

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Confirmation: It Isn’t About Religion

The Indianapolis Star, in one of its increasingly rare forays into what used to be called “news,” reported on a very interesting study investigating popular opinion about the pending Supreme Court case brought by a baker who refused to sell a wedding cake to a gay couple.

As most of you are aware, the baker–routinely described as very pious–has argued that forcing him to sell one of his cakes to a same-sex couples would not only violate his religious liberty, but would amount to “compelled speech.” That is, he argues that civil rights laws requiring him to do business with people he considers immoral are really compelling him to affirm his approval of that immorality.

The free speech argument appears to be a fallback, in case the Supreme Court doesn’t buy the religious liberty one. In any event, most people who are aware of the controversy see the conflict as one pitting respect for “sincere religious belief” against the rights of LGBTQ citizens to be free of discrimination.

As the study found, it really isn’t.

I vividly recall a conversation I had many years ago with a friend I knew to be a truly nice person. He wasn’t a bigot. I was Executive Director of Indiana’s ACLU at the time, and he understood the organization to be a defender of individual liberty and the proposition that the power of government (and popular majorities) to prescribe our behaviors is limited by the Bill of Rights.

He wanted to know why the ACLU didn’t think civil rights laws violated individual liberty.  Doesn’t “freedom” include the freedom to discriminate?

The study cited by the Star confirms the continued salience of his long-ago question.

People who believe businesses should be able to deny services to same-sex couples aren’t necessarily citing religious reasons for discriminating, a new study by Indiana University sociologists has found.

Instead, many simply believe businesses should be able to deny services to whomever they want — even though that violates civil rights laws that protect certain classes of people….

Slightly more than half of those surveyed said they supported a business denying wedding services to a same-sex couple, whether the business cited religious opposition to same-sex marriage or non-religious reasons.

Ninety percent of self-identified Republicans said that businesses should be able to choose who they do business with.

I’ve been in these discussions, and more often than not, people who believe civil rights laws deprive them of their liberty will say something like: “what about those signs that say ‘no shoes, no shirt, no service?” or “the government shouldn’t make the kosher butcher sell ham,” or “what if a Nazi asked the baker for a swastika cake?”

I will restrain myself from launching into one of my “civic ignorance” diatribes, and merely point out that civil rights laws do not deprive merchants of their liberty to refuse service based upon a customer’s behavior. Merchants also retain the liberty to decide what goods they will sell (if a menswear store refuses to stock dresses for sale to a female customer, that doesn’t violate anyone’s civil rights.)

Civil rights laws prohibit discrimination based upon the identity of customers who are members of legally specified classes. (FYI: Nazis aren’t a protected class.)

Do those laws curtail a merchant’s “liberty” to discriminate? Yes. So do laws prohibiting religious parents from “whipping the devil” out of their children, and a variety of other “sincere” behaviors deemed damaging or dangerous to society.

Here’s the deal–the “social contract.”

When a merchant opens a shop on a public street, he depends upon local police and firefighters to protect his property. He depends upon government to maintain the streets and sidewalks that allow customers to access his store, and the roads, railways and air lanes that carry his merchandise from the manufacturer to his shelves. In return for those and other public services that make it possible for him to conduct his business, government expects him to pay his taxes, and obey applicable laws–including civil rights laws that protect historically marginalized groups against his disdain.

The butcher, the baker, and the candlestick maker retain their liberty to advertise that disdain. They retain the liberty to lobby for repeal of civil rights laws. They retain the right to exclude people they consider immoral or unpleasant or just “different” from their social gatherings, their churches and their homes.

As I’ve often said, if you don’t like gay people, you don’t have to invite them to dinner. You just have to take their money when it’s proffered in a commercial transaction.Is that really an intolerable invasion of your liberty?

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Who’s Talking?

As long as we’re on the subject of First Amendment Free Speech rights, a federal judge has just handed down a decision that illuminates another aspect of those rights.

As I explained yesterday, our right to free expression is protected against government interference. Usually we think of that interference in terms of censorship, of government shutting us down. But this judge’s decision–which rests on decades of settled law–reminds us of another thing government cannot constitutionally do: it cannot compel our speech, either.

(Reuters) – A federal judge on Friday struck down a 2011 North Carolina law requiring abortion providers to perform an ultrasound and explain it to a woman before having an abortion, arguing it violated the constitutional right to free speech of doctors.

U.S. District Judge Catherine Eagles found that a state does not have “the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term.”

If the right to free speech means anything, it means that we have a right to form our own opinions, based on the widest possible access to information, and to share those opinions with others, or not, as we see fit.

Being forced to recite a script and pretend it represents our own views, like being forced to affirm allegiance to a deity or a nation (see Barnett v. West Virginia Board of Education), isn’t just intellectually dishonest; it violates our most fundamental liberties.

Compelled speech is especially pernicious when it intrudes upon the doctor/patient relationship, which depends to a great extent upon the patient’s ability to rely upon the candor of her provider–to trust that her doctor is acting in her best interests.

The principle extends well beyond medical advice, however. If the government could tell professionals of any sort what to say, if lawmakers could impose “correct” communication on scientists, police officers, media figures… how would Americans ever be able to trust anyone?

How would we know who is really talking?

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