Wither Zauderer, Blossom Heightened Scrutiny? How the Supreme Court's 2018 Rulings in Becerra and Janus Exacerbate Problems with Compelled-Speech Jurisprudence

By Calvert, Clay | Washington and Lee Law Review, Fall 2019 | Go to article overview

Wither Zauderer, Blossom Heightened Scrutiny? How the Supreme Court's 2018 Rulings in Becerra and Janus Exacerbate Problems with Compelled-Speech Jurisprudence


Calvert, Clay, Washington and Lee Law Review


Table of Contents

I.Introduction....................1396

II. Compelled Speech and the Chasm Dividing the Justices: Examining Becerra and Janus and Their Impact on Zauderer....................1405

A. National Institute of Family & Life Advocates v. Becerra....................1406

B. Janus v. American Federation of State, County, & Municipal Employees, Council 31....................1423

III. Digging Deeper into Justice Thomas's Views on Compelled Speech: His Masterpiece Cakeshop Concurrence....................1433

IV. Conclusion....................1435

I.Introduction

The unenumerated First Amendment1 right not to speak,2 sometimes called "the First Amendment freedom from compelled expression,"3 once was readily understood. Viewed by the United States Supreme Court "as part and parcel of the freedom of speech,"4 it was rooted in a handful of cases.5 Each was factually different, but generally extended "robust protection for a right not to speak."6

For example, in 1943 the Supreme Court concluded in West Virginia State Board of Education v. Barnette1 that public school students cannot be forced to pledge allegiance to the United States and to engage in the symbolic expression8 of saluting the American flag.9 Justice Robert Jackson famously explained in Barnette that "[i]f 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."10 This precept, Professor Joseph Blocher notes, is now "a pillar of First Amendment jurisprudence . . . despite the fact that the amendment's text says nothing specifically about a right or freedom not to speak."11

Later, in its 1977 ruling in Wooley v. Maynard,12 the Court made it clear that a state cannot compel individuals to display mottos on government-required license plates that are "repugnant to their moral and religious beliefs."13 The Court ruled in favor of a husband and wife who were Jehovah's Witnesses and who objected on "moral, religious, and political" grounds to conveying New Hampshire's state motto of "Live Free or Die" on their automobile's license plate.14 In brief, as Professor Mark Strasser writes, "Barnette and Wooley both stand for the proposition that the First Amendment protects the right not to speak under certain conditions . . . ."15

Additionally, the Court in Miami Herald Publishing Co. v. Tornillo16 specified forty-five years ago that newspapers are not obligated to print editorial content to which they object.17 Furthermore, in its 1995 ruling in Hurley v. Irish-American Gay, Lesbian & Bisexual Group,18 the Court held that private citizens who organize parades cannot be required by the government to include in them "a group imparting a message the organizers do not wish to convey."19

Such cases individually are somewhat simple to understand. Yet as Professor Nat Stern contended in 2011, "the right to resist governmentally imposed expressive activities has evolved into a sprawling and ungainly doctrine."20 That is largely because the right not to speak has been "[i]nvoked in efforts to thwart requirements ranging from acceptance of military recruiters at law school campuses to subsidies for generic advertising of agricultural products . . . ."21 If it was true eight years ago that the right not to speak had "lost much of its coherence,"22 then facets of three 2018 Supreme Court rulings-National Institute of Family & Life Advocates v. Becerra,23 Janus v. American Federation of State, County, & Municipal Employees, Council 31,24 and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission25-further clouded the murky waters.

In Becerra, a conservative five-Justice majority26 held that two compelled-speech obligations affecting religiously affiliated anti-abortion crisis pregnancy centers27 in California likely violated the First Amendment. …

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