Amy J. Sepinwall (University of Pennsylvania - Legal Studies Department) has posted Uncompelling: The Specious Case Against Compelled Speech on SSRN. Here is the abstract:
Freedom of speech, the Supreme Court has said, protects a person's decisions about both what to say and what not to say. Strikingly, though, the rationale in caselaw and commentary for not restricting speech is different from the rationale for not compelling speech. In particular, restricting speech is said to wage an injury to the polity, because it undermines our ability to collectively self-govern. By contrast, compelling speech is taken to be wrong because it interferes not with the polity but instead with the self, undermining autonomy or integrity. It is at least awkward, if not also troubling, that the two wrongs protect different interests when they are taken to be flip sides of the same coin.
Nor does the trouble end there. The political rationale makes sense of having the Free Speech clause protect speech but not conduct. Speech lies at the core of democracy, but conduct does not. By contrast, the self-focused rationale for prohibiting compelled speech cannot explain why compelled speech is worse, and so more worthy of prohibition, than compelled conduct. After all, compelling someone to act against their commitments can be at least as violative of the self as making them say something they oppose.
The Court's two most recent compelled speech decisions exemplify the problem. In 303 Creative v. Elenis, the Court held that requiring a website designer to offer her services would involve compelled speech, in violation of the First Amendment. Yet the logic of its decision protecting individuals from supporting projects they believe wrong-extends to compelled conduct. Why should a website designer get to refuse service when a wedding planner who must concern themselves with every detail of the wedding may not? In Moody v. Netchoice, the Court announced that the First Amendment protects individuals or businesses from being made to host speech they oppose where, but only where, they are already engaged in speech. But the Court offered no justification for limiting the protection to speakers; nor did it explain why hosting speech was worse than hosting an activity one opposed. Why should Facebook get to exclude speech denying the Holocaust while eBay can be made to sell concentration camp garb?
This Article aims to reckon with the equivalence between compelled speech and conduct, which few other scholars have addressed and none have successfully resolved. It begins by tracing the divergence in the way the law conceptualizes the wrongs of restricting and compelling speech, to show why the equivalence between speech and conduct poses a special problem for compelled speech doctrine and theorizing. It turns to Netchoice, the Court's most recent compelled speech decision, as a case study in the Court's disparate treatment of speech and conduct. The Article then evaluates possible theoretical innovations that would find a different grounding for the wrong of compelling speech and finds that these would not justify the disparity either. I end by proposing that the law equalize its treatment of compelled speech and conduct-not by enhancing protection from compelled conduct but by weakening protections from compelled speech.
Highly recommended.
