Introduction Edit

On occasion, the government attempts to compel speech rather than to restrict it. For example, in Riley v. National Federation of the Blind of North Carolina, Inc.,[1] a North Carolina statute required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations. The Supreme Court held this unconstitutional, writing:

There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees "freedom of speech," a term necessarily comprising the decision of both what to say and what not to say.[2]

In the commercial speech context, by contrast, the Supreme Court held, in Zauderer v. Office of Disciplinary Counsel,[3]

constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right.[4]

In Zauderer, the Supreme Court upheld an Ohio requirement that advertisements by lawyers that mention contingent-fee rates disclose whether percentages are computed before or after deduction of court costs and expenses.

In Meese v. Keene,[5] however, the Court upheld compelled disclosure in a noncommercial context. This case involved a provision of the Foreign Agents Registration Act of 1938, which requires 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 material need not state that it is "political propaganda," but one agent objected to the statute's designating material by that term, which he considered pejorative. The agent wished to exhibit, without the required labels, three Canadian films on nuclear war and acid rain that the Justice Department had determined were "political propaganda."

In Meese, the Supreme Court upheld the statute's use of the term, essentially because it considered the term not necessarily pejorative. On the subject of compelled disclosure, the Court wrote:

Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.[6]

One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no serious First Amendment issue, and nothing in the Court’s opinion would seem to refute this inference. Thus, it seems impossible to reconcile this opinion with the Court's holding a year later in Riley (which did not mention Meese) that, in a noncommercial context, there is no difference of constitutional significance between compelled speech and compelled silence.

In Meese, the Court did not mention earlier cases in which it had struck down laws compelling speech in a noncommercial context. In Wooley v. Maynard, the Court struck down a New Hampshire statute requiring motorists to leave visible on their license plates the motto "Live Free or Die."[7]

In West Virginia State Board of Education v. Barnette, [8] the Court held that a state may not require children to pledge allegiance to the United States. In Miami Herald Publishing Co. v. Tornillo,[9] the Court struck down a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers' criticism and attacks on their record.

The Court decided two cases in its 1994-1995 term involving compelled speech. In McIntyre v. Ohio Elections Commission, [10] the Court, applying strict scrutiny, struck down a compelled disclosure requirement by holding unconstitutional a state statute that prohibited the distribution of anonymous campaign literature. "The State," the Court wrote, "may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented."[11]

In Hurley v. Irish-American Gay Group of Boston,[12] the Court held that Massachusetts could not require private citizens who organize a parade to include among the marchers a group imparting a message — in this case support for gay rights — that the organizers do not wish to convey. Massachusetts had attempted to apply its statute prohibiting discrimination on the basis of sexual orientation in any place of public accommodations, but the Court held that parades are a form of expression, and the state’s "[d]isapproval of a private speaker’s statement does not legitimatize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others."[13]

In Glickman v. Wileman Brothers & Elliott, Inc.,[14] the Court upheld the constitutionality of marketing orders promulgated by the Secretary of Agriculture that imposed assessments on fruit growers to cover the cost of generic advertising of fruits. The First Amendment, the Court held, does not preclude the government from "compel[ling] financial contributions that are used to fund advertising," provided that such contributions do not finance "political or ideological" views.[15]

In United States v. United Foods, Inc.,[16] the Court struck down a federal statute that mandated assessments on handlers of fresh mushrooms to fund advertising for the product. The Court did not apply the Central Hudson commercial speech test, but rather found “that the mandated support is contrary to First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity.”[17] It distinguished Glickman on the ground that "[i]n Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing authority. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme."[18]

In Johanns v. Livestock Marketing Association,[19] the Court upheld a federal statute that directed the Secretary of Agriculture to use funds raised by an assessment on cattle sales and importation to promote the marketing and consumption of beef and beef products. The Court found that, unlike in Glickman and United Foods, where "the speech was, or was presumed to be, that of an entity other than the government itself," in Johanns the promotional campaign constituted the government's own speech and therefore was "exempt from First Amendment scrutiny."[20] It did not matter "whether the funds for the promotions are raised by general taxes or through targeted assessment."[21] As for the plaintiffs' contention "that crediting the advertising to 'America’s Beef Producers'" attributes the speech to them, the Court found that, because the statute does not require such attribution, it does not violate the First Amendment, but the plaintiffs’ contention might form the basis for challenging the manner in which the statute is applied.[22]

References Edit

  1. 487 U.S. 781 (1988) (full-text). In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 605 (2003) (full-text), the Supreme Court held that a fundraiser who retained 85% of gross receipts from donors, but falsely represented that "a significant amount of each dollar donated would be paid over to" a charitable organization, could be sued for fraud. "So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on solicitors' fees per se, such [fraud] actions need not impermissibly chill protected speech." Id. at 619.
  2. 487 U.S. 781, 796-97 (1988) (emphasis in original).
  3. 471 U.S. 626 (1985) (full-text).
  4. Id. at 651, 652 n.14 (1985) (emphasis in original).
  5. 481 U.S. 465 (1987).
  6. Id. at 480.
  7. 430 U.S. 705 (1977) (full-text).
  8. 319 U.S. 624 (1943) (full-text).
  9. 418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1 (1986), the Court held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. While a plurality opinion adhered to by four justices relied heavily on Tornillo, there was not a Court majority consensus as to rationale.
  10. 514 U.S. 334 (1995).
  11. Id. at 357.
  12. 515 U.S. 557 (1995).
  13. Id. at 581.
  14. 521 U.S. 457 (1997).
  15. Id. at 471, 472. The Court found that the marketing orders did not raise a First Amendment issue, but "simply a question of economic policy for Congress and the Executive to resolve." The "Central Hudson" test, therefore, was inapplicable. Id. at 474.
  16. 533 U.S. 405 (2001).
  17. Id. at 413.
  18. Id. at 411.
  19. 544 U.S. 550 (2005).
  20. Id. at 559, 553.
  21. Id. at 562.
  22. Id. at 564-66.