The compelled speech angle
Marty.Lederman at USDOJ.GOV
Mon Jun 12 20:19:39 PDT 2000
In Barnette, Wooley, Hurley, et al., the "compelled speech" issue was whether a state could compel a person or persons to speak, or convey, a particular message. The injury in Barnette or Wooley was not the result of the risk that listeners or viewers would mistakenly conclude that the speakers believed in the compelled message, but instead in the harm to dignity and autonomy that results when one is forced to utter (or, more tenuously, display on one's license plate) what one does not believe. (On this distinction, I highly recommend Abner Greene's "The Pledge of Allegiance Problem," 64 Fordham L. Rev. 451, 473-87 (1995).) In such cases, of course, it doesn't matter that everyone knows the speech is legally compelled, because misattribution is not the gist of the problem. (In Hurley, by contrast, there was a real misattribution risk, which the Court discussed, because in the context of a parade most viewers would assume that the sponsors approved of (or at least did not disapprove of) the banner behind which the GLIB participants claimed the right to march.)
There is no such issue in Dale: New Jersey is not requiring the Scouts to say anything (and if it did, Hurley would control). Dale has no state-law right to say anything in his capacity as Scout; and the BSA can write his "script" to the same extent that it can put words in the mouth of other adult members. Hurley is not controlling because New Jersey does not claim the power to force BSA to speak, let alone to send any particular message; as I've stressed in previous posts, the NJ statute would apply in precisely the same fashion even if Dale had no role as a "speaker" or "role model." Accordingly, BSA's "compelled speech" argument in this case is, instead, precisely that Dale's presence will be *perceived* as conveying the message that the *Scouts* think homosexuality is acceptable. And, for the reasons we've discussed, I do not think there's much support (no support in the record, anyway) to support that argument; and I think Mergens and PruneYard are, while not directly on point, helpful analogies.
Marty Lederman (in my private capacity)
From: Larry Tribe [mailto:larry at TRIBELAW.COM]
Sent: Monday, June 12, 2000 2:42 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: Re: The compelled speech angle
I'm not convinced by the compelled speech argument against the NJ Supreme
Court's decision, but those who claim that there can be no possible
compelled speech objection to an affirmance of that decision by the U.S.
Supreme Court because everyone would see that it was the force of law that
required the inclusion of gay leaders by the Boy Scouts oversimplify; they
seemingly overlook the fact that precisely the same thing could have been
said of the compelled flag salute in West Virginia Board of Education v.
Barnette and of the compelled use of the "Live Free or Die" license plate in
Wooley v. Maynard. -- Larry Tribe.
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Monday, June 12, 2000 1:55 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: The compelled speech angle
> -----Original Message-----
> From: LoAndEd at AOL.COM [mailto:LoAndEd at AOL.COM]
> Sent: Monday, June 12, 2000 4:04 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Responsive thoughts on Boy Scouts and association
> [Marty Lederman:]
> I think the
> *compelled* speech question is at the heart of the case. My
> Mergens point --
> i.e., that (legally compelled) nondiscrimination is not
> reasonably perceived
> as endrosement -- was intended only to address the compelled
> speech claim. I
> simply don't think it plausible that, if the BSA were to lose
> the case, any
> reasonable observer would conclude, from Dale's presense as
> adult Scout
> members, that the Scouts endorse homosexuality.
Legally sophisticated members of the public might understand that the Scouts
were forced to obey a statutory/court mandate, but the fact would remain
that the Scouts, in that eventuality, would be forced to relinquish the
actual, untainted conveyance of their message about homosexuality. I don't
see that it makes any difference whether one interprets that message as
overt homophobia (as I do) or simply as "silence" (as the Scouts claim,
evasively in my view). The right NOT to speak has equal stature with the
right TO speak, last I heard. Silence IS a message.
I agree that legally compelled non-discrimination (in areas where the govt
may properly regulate discrimination) does not constitute compelled speech.
But again, I think that begs the question. The very issue here is whether,
under the FA, the govt may properly regulate "discrimination" in this
particular (arguably expressive/associative) context. Perhaps it can, I
could be wrong and you could be right (though I am not persuaded), but I
don't see how the govt-mandated nature of the inclusion assists in resolving
It seems to me this case must be resolved along a different axis, as to
whether the activity the Scouts engage in is really of a commercial,
nonexpressive nature (as to this issue) or is really, genuinely expressive
and within a zone of FA protection. If it is not within that zone of
protection, then I think govt's power to either compel or prohibit the
conduct (however you choose to look at it -- "compel" the Scouts to let Dale
join, or "prohibit" them from excluding him) would be symmetrically valid.
But if the Scouts are operating in a sphere meriting FA protection, then I
don't see either prohibition OR compulsion as valid.
Bryan Wildenthal, Thomas Jefferson School of Law
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