Copyright, con law, and compelled speech

[Tobias Barrington Wolff]

John Noble writes:
>The compelled speech doctrine, as a First Amendment command, is
>no more than Prof. Volokh describes -- a constitutional right to be free
>from the government compelling me to say something. Copyright protection of
>unpublished works imports the value but not the command.

I'm afraid I don't agree.  The prohibition against compelled affirmations
serves autonomy interests -- interests in not being forced to embrace a
public identity or participate in advocacy as to which one has principled
objections -- that has no meaningful analogue in copyright law.  The
compelled affirmations doctrine also embraces speech values that are
different from those inherent in copyright.  Copyright (to oversimplify)
aims to encourage the production of speech by providing authors and artists
an incentive to do so -- a financial incentive, in large part, and perhaps
also a dignitary one (i.e. a sense that one can reliably claim personal
credit for one's creations).  The compelled affirmations doctrine (again,
to oversimplify) seeks to protect against the chilling of dissenting voices
by preventing the State from imposing an official orthodoxy and making
dissent uncomfortable.

In short, neither the compelled affirmations doctrine itself, nor its
relationship to copyright law, is as simply as you suggest.

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Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
530-754-6981