![]() ![]() Compelled speech over the internet technically alters speech, but, as a result of the internet’s limitless nature as a speech medium, 13 it does not restrict opportunities to produce speech. ![]() More importantly, by highlighting the harms to First Amendment principles, these two models suggest a way to evaluate whether a compelled speech law survives the First Amendment.Īlthough the conceptual problem appears minor, it carries substantial implications. Though not every case maps onto them, the models nonetheless bring coherence to much of the confused compelled speech precedent. They therefore call for different doctrines tailored to their respective First Amendment values. The two models are implicated in different categories of compelled speech cases and track different harms. The antisuppression-influenced “speech restriction model” involves compelled speech that, due to limits on the amount of speech possible, constrains what the speaker can say. 12 This Note argues that, as a matter of first principles, the negative speech right can be understood in two distinct ways: The autonomy-influenced “speech production model” involves compelling a shift from silence to speech. When lost, first principles can help reorient. 10 The result has seemingly been little more than “one damned case after another.” 11 9 Indeed, the right to not speak has arisen with enough variation to raise doubts about ever identifying a theory that explains compelled speech. 8 Individual Justices have relied on the negative speech right as a basis for exempting objectors from public accommodation obligations in longstanding civil rights laws. 6 Recent examples include compelled disclosures by state abortion services 7 as well as agency-shop arrangements. At its core, the principle of the negative speech right is simple: freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” 5 The Supreme Court has reiterated this principle of First Amendment law in various contexts. The question is when such legal compulsions violate the right to not speak.Ĭompelled speech has long perplexed courts and commentators. ![]() 3 While “unlight is said to be the best of disinfectants,” 4 even the sunlight of disclosure laws aimed at preserving a healthy democracy must suffer the right to free speech. 2 Maryland’s version of these laws quickly bowed to a First Amendment challenge. Introduction: “One Damned Case After Another” 1įollowing the revelations of foreign interference in the 2016 presidential election, several states passed election laws obliging internet platforms to disclose information about who purchased political ads on their websites. ![]()
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