Compelled speech?

Howard M. Wasserman wasserma at fiu.edu
Thu May 20 11:31:59 PDT 2004


I personally always have and argued that a connection or association between
compelled speaker and the particular expression or message is not necessary
for their to be a compelled speech problem.  It should be enough that one is
compelled to participate at any stage in the process of producing that
speech by that speaker, whether in paying (or helping to pay) someone else
to create and distribute the message or producing the message one's self,
even if only by typesetting and printing the message.

In response to Frank Cross's point that the person paid to print the speech
to which he objects:

   The fact that one benefits from the expression one is compelled to create
does not eliminate the First Amendment problem.  Louis Abood would
(presumably) benefit financially (in the sense of net resources) from the
speech he is enabling; the Union's mission demands that its expression
benefit the Union and its members, so Abood should get back in benefits more
than what he pays into the Union (or something is wrong in the Union).  The
same goes for the produce growers in cases such as United Foods--the fact
that they would benefit from the advertising via an increase in business did
not defeat their compelled expression claim.  True these both are funding
cases.  But I am not sure why, if the question is one of profit, that
matters.
   Also, even to the extent Kinko's loses its claim because it would not be
associated with the messages it prints (a view I do not share), I think
Kinko's is differently situated than the Union member who is compelled by
the Union (to which he must belong) to copy and print some flyers as part of
his Union role.

As to Jason Mazzone's point about Abood, The Lawyer:

   If the government (as opposed to the senior partner in the firm) is
requiring that young lawyer to work on the case with which he disagreed, I
would suggest that there would be a First Amendment problem with essentially
having to take and put forward positions you find objectionable.  To the
extent the lawyer does not have a First Amendment argument, it is only
because the rules of attorney professional responsibility carve out an
exception to compelled expression rights (I am not arguing that they should,
btw, only that they functionally do so).


Howard Wasserman
FIU College of Law



----- Original Message ----- 
From: "Frank Cross" <crossf at mail.utexas.edu>
To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>; <conlawprof at lists.ucla.edu>
Sent: Thursday, May 20, 2004 2:09 PM
Subject: RE: Compelled speech?


>
> Not a clear call, I suppose, but I would think it a lesser burden.  With
> funded speech, you are devoting your net resources to produce a speech
> product.  With printed speech, you are presumably profiting from
(receiving
> net resources) that speech product.  So, economically, the burden would
> seem to be greater with funded speech.
>
> Non-economically, with funded speech, there is some plausible inference of
> the funder's association with the speech content.  I personally would make
> no association whatsoever between Kinko's and anything they might happen
to
> print or copy.
>
>
>
> At 12:04 PM 5/20/2004, Volokh, Eugene wrote:
> >         I much appreciate Prof. Mazzone's arguments, but I'd love to
> >hear what others think:  Is being required to physically print speech a
> >lesser burden on one's First Amendment rights not to associate or speak
> >than being required to help fund the speech?  I would have thought that
> >it would be at least an equal, if not greater, burden.
> >
> >         Eugene
> >
> >I wrote:
> >
> > > > (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?
> >
> >Jason Mazzone wrote:
> >
> > > I think the difference is that in the latter case, Louis is
> > > not "producing speech" in the same way he would be if he were
> > > forced to contribute $ to the union. The speech producer,
> > > when Louis is the printer, is the employer who is paying
> > > Louis for his time. If Louis were not a printer but a lawyer
> > > and his employer told him to work on a challenge to a law the
> > > union disliked, so long as Louis is not being told to work
> > > for free at the weekend, I don't see a First Amendment problem.
> >_______________________________________________
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>
> Frank Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> CBA 5.202
> University of Texas at Austin
> Austin, TX 78712
>
> _______________________________________________
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