VOLOKH at law.ucla.edu
Thu May 20 08:21:08 PDT 2004
(1) Let me just ask for a clarification on the response to my union and the printer hypo. Say that a labor statute not only allowed unions to demand that employees pay dues that will go to political purposes, but also let unions require employees to work on union political campaigns -- for pay, and within their job category, but against their will.
Louis Abood, whose job description is printer (that's what he voluntarily does for his regular employer) is forced to pay for the political advocacy, and also forced to do print jobs (again, for pay, though I'm not sure what the First Amendment significance would be). He clearly has a First Amendment defense against the payment-for-speech compulsion. Can it really be that he has no First Amendment defense against the production-of-speech compulsion?
(2) It seems to me that there is a difference between requiring someone to actually participate in the production of speech -- either by paying money, or even more directly by physically printing the materials -- and requiring the person to engage in nonspeech behavior (such as providing food) that is just part of the same social event as the speech.
(3) What about the political ideology discrimination hypo? As I said, the Seattle ordinance applies to discrimination based on political ideology as much as discrimination based on sexual orientation. A pro-gay-rights printer is required to print tirades in favor of the criminalization of homosexuality -- no First Amendment violation?
From: Jason Mazzone [mailto:jason.mazzone at brooklaw.edu]
Sent: Thu 5/20/2004 10:54 AM
To: Volokh, Eugene
Subject: RE: Compelled speech?
If Abood is a commercial printer and the union pays him to print up
flyers, no compelled speech. If Abood is just a regular guy who, rather
than pay union dues, is told to organize and finance the printing of
flyers, compelled speech.
Here is one for you: not a printer this time but a caterer who refuses to
serve food at the wedding because she doesn't approve of same-sex
marriage. And how about the hotel that refuses to let the couple spend
their honeymoon there?
Assistant Professor of Law
Brooklyn Law School
250 Joralmeon Street
Brooklyn, NY 11201
(718) 780-7514 (voice)
(718) 780-0394 (fax)
> Seems to me that this case is quite similar to Abood and Keller -- in both
> situations, a person is being required to participate in the creation of
> speech of which he disapproves. If anything, in the invitation printing
> context the participation is more direct than in Abood. I don't quite see
> that compulsion to participate quite directly in the creation of speech
> when the restaurant owner is being told to serve food to people.
> But let's consider a simple hypo, based on Abood: Instead of being
> required to give money to the union, where it will be used for speech of
> which Abood disapproved, say that Abood was required to print flyers for
> the union.
> (Let's also say that the requirement was part of a general statute, and
> not just imposed on government employees; the Court didn't rely on the
> government's role as employer in the Abood case itself, and the
> government's role as employer isn't implicated in the Washington printer
> case, either.) Would that eliminate the First Amendment problem? Or
> would it only exacerbate it, because Abood was being required to more
> directly participate in the creation of speech that he disapproved of?
> Jason Mazzone writes:
> There is a bigger difference. In Abood and Keller, the problem was making
> people finance causes with which they didn't agree. The first amendment
> claim of an invitation printer seems as dubious as the hotel or
> owner claiming a freedom of association right to refuse service to
> Eugene Volokh writes:
> > Well, in Abood and Keller the Supreme Court made clear that the
> > First Amendment is triggered when someone is required to give some
> > entity (other than the general government) money that will be used for
> > political purposes. . . .
> > Of course, there is one difference here: In Abood, the speech was
> > overtly political, and here it's just a wedding invitation.
> Jason Mazzone
> Assistant Professor of Law
> Brooklyn Law School
> 250 Joralmeon Street
> Brooklyn, NY 11201
> (718) 780-7514 (voice)
> (718) 780-0394 (fax)
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
More information about the Conlawprof