Compelled speech?

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Thu May 20 12:37:53 PDT 2004 

I'd like to know whether list members think that Miami Herald Publishing Co.
v. Tornillo (1974) is relevant.

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net] 
Sent: Thursday, May 20, 2004 12:28 PM
To: Howard M. Wasserman; conlawprof at lists.ucla.edu
Subject: Re: Compelled speech?

 

Two clarifications and one question for Prof. Wasserman:

 

1.  Abood was not required to be a member of the union -- Michigan law
merely required him to give money to the union (i) to support collective
bargaining activities on behalf of the bargaining unit of which he was a
part; and (ii) to support other activities of the union unrelated to the
union's role as exclusive unit bargaining agent.  The Court permitted the
required payment for the former activities -- because Abood would benefit
from such activities -- and invalidated the required payment for the latter.

 

2.  Thus, there was no guarantee that Abood would "get back in benefits" the
same or more than the $$ that the Court permitted him to withhold.  The
activities for which he was constitutionally entitled to withhold payment
were that small percentage of activities that were not germane to the
union's duties as collective-bargaining representative.  (I agree, however,
that this should not make a big difference in the constitutional analysis.)

 

3.  Here's the question:  Professor Wasserman thus is correct that in cases
such as Abood the Court has not required that there be any "connection or
association between the compelled speaker and the particular expression or
message."  But in that case, why are those cases rightly decided?  In
circumstances where no reasonable observer would assume that the payor
agrees with or wishes to convey the viewpoint in question, why does the
compelled payment raise a Free Speech problem, any more than does the use of
compelled taxes or user fees for activities that are anathema to the
taxpayer or feepayer?  If there's no First Amendment problem in PruneYard or
Southworth, why is there in Abood and Keller and United Foods?  (I apologize
in advance for dredging up this question again -- I know we've discussed it
many times, but I'm still curious about the what might be the strongest
argument in favor of the results in the Abood line of cases.)  

 

   

----- Original Message ----- 

From: "Howard M. Wasserman" < <mailto:wasserma at fiu.edu> wasserma at fiu.edu>

To: < <mailto:conlawprof at lists.ucla.edu> conlawprof at lists.ucla.edu>

Sent: Thursday, May 20, 2004 2:31 PM

Subject: Re: Compelled speech?

 

> 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" < <mailto:crossf at mail.utexas.edu>
crossf at mail.utexas.edu>
> To: "Volokh, Eugene" < <mailto:VOLOKH at law.ucla.edu> VOLOKH at law.ucla.edu>;
< <mailto:conlawprof at lists.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.
> > >_______________________________________________
> > >To post, send message to  <mailto:Conlawprof at lists.ucla.edu>
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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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