Let's Finish Well!

 As I said in class yesterdays,  today we will discuss compelled speech and the last two cases from the syllabus:

Christian Legal Society v. Martinez (link);Citizens United (link)

Freedom of Thought Requires No Compelled Speech

Here is how I describe the Court's compelled speech doctrine in my Telescope Media article:

 

Compelled speech is unconstitutional. Of this there can be no doubt. In an earlier work, I stated the Court’s no-compelled-speech rule as follows: “[U]nder the Free Speech Clause government may not compel a person to express or disseminate any belief, creed, or statement of values, whether it is the government’s own message or the message of a third-party.” Or, in the words of one of the leading First Amendment scholars, Professor Eugene Volokh, “Government coercion is presumptively unconstitutional . . . when it compels people to speak things they do not want to speak.”

 
First thing you need to know is that the Supreme Court has repeatedly held that the right of free speech includes the right not to be compelled to speak. 

Here is how the Court stated the “no compelled speech” rule in Wooley V. Maynard (casebook p. 1609), the landmark case on this Free Speech right:

 "We begin,” said the Wooley Court, “with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

In other words, the government may neither silence those who wish to speak, nor put words in the mouths of those who wish not to speak.

Wooley, of course, is the famous case concerning the license plate motto—Live Free or Die-- in the State of New Hampshire.

Mr. Maynard was a Jehovah’s Witness who was conscientiously opposed to that motto.

He covered the motto with tape on his license plate, and New Hampshire was so committed to its “live free or die” message that it prosecuted Maynard for covering up the motto. 430 U.S 705.

And the Wooley Court held that Government may not compel citizens to display or to help distribute speech of which they disapprove. Freedom of thought protects expressive autonomy.

Alexander Solzhenitsyn has captured the essence of the right not to speak as being based upon each individual’s conscience and commitment to the truth as he or she understands it.

In an essay entitled Live Not By Lies, Solzhenitsyn said “let us refuse to say that which we do not think” and continued:

 

An honest man worthy of the respect of both his children and his contemporaries:

“will not depict, foster or broadcast a single idea which he can see is false or a distortion of the truth, whether it be in painting, sculpture, photography…or music.”

“Let us refuse to say………that which we do not think.”

See also West Virginia State Bd of Educ v. Barnette (casebook p. 1608) in which the Court struck down a mandatory flag salute requirement and said this:

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.

Why is this right so fundamental, to human dignity and freedom of thought?