We all know that the First Amendment protects us from censorship of what we say, but we often don’t think about the flipside. Our constitutionally protected freedom of speech also means that no one can force us to say things we do not want to say—especially things that violate our deepest beliefs.
Forced or “compelled speech” seems like a hypothetical concept considered only by law students, but real-life cases of compelled speech were at the Supreme Court this past term. The Court addressed the problem of compelled speech in three different decisions.
Two of these cases involved Alliance Defending Freedom clients Jack Phillips and the National Institute of Family and Life Advocates (NIFLA). A third case was brought by Illinois state employee Mark Janus, represented by the National Right to Work Legal Defense Foundation. At first glance, these cases might not seem related. (After all, what could a cake artist, pro-life pregnancy centers, and a state employee possibly have in common?) But the Supreme Court’s rulings in each of these cases build upon each other and make one thing clear: Government generally has no business compelling speech, especially when that speech violates an individual’s conscience.
Jack Phillips’s cakes are undoubtedly an art form. He sits down with his customers to get an idea of what they want out of their custom cake. Then he sketches a design on paper before baking, sculpting, and painting his creations.
Jack simply cannot express all messages through his custom cake art. That’s why when two men asked Jack to design a custom cake to celebrate their same-sex marriage, he politely declined. He explained that he would be happy to design them a cake for another event or sell them anything else in his shop, but he just could not express a message that conflicted with his deeply held religious beliefs about marriage.
Still, the couple filed a claim, and the Colorado Civil Rights Commission punished Jack for living in accordance with his faith.
In its decision, the Supreme Court made it clear that the government was hostile to Jack’s freedom of religion. Justice Anthony Kennedy wrote in the majority opinion that “the Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral towards religion.”
While the Supreme Court did not explicitly rule on the speech aspect of this case, the ruling made it clear that the government must respect and show tolerance for people of faith and their beliefs about marriage.
The National Institute of Family and Life Advocates (NIFLA) is an organization that provides support for pro-life pregnancy centers across the country. Heidi Matzke runs one such clinic: Alternatives Pregnancy Center in Sacramento, California. Heidi and many like her feel uniquely called to help women in unplanned pregnancies choose life.
But that call was challenged when the state of California passed AB775, a law that effectively requires pregnancy centers to provide free advertising for abortion.
It makes no sense for centers who advocate for life to promote the very thing they are against. It might make sense, however, if you are a pro-abortion activist looking for ways to shut down dissenting voices. And by specifically targeting pro-life clinics, that was what the law intended to do.
In NIFLA v. Becerra, the Supreme Court said this was unacceptable. Writing for the majority, Justice Clarence Thomas wrote that forcing the centers to say these messages that they do not want to say violates the First Amendment.
In his concurring opinion, Justice Anthony Kennedy said that while it is bad enough to compel speech, it is particularly wrong to compel speech that violates a person’s freedom of conscience. “Governments must not be allowed to force persons to express messages contrary to their deepest convictions,” he wrote. “Freedom of speech secures freedom of thought and belief.”
In the NIFLA decision, the Supreme Court built on their decision in Masterpiece. Government hostility toward certain beliefs is unacceptable – as is compelling the speech of those who hold beliefs that differ from the government-favored viewpoint.
Like Heidi and Jack, Mark Janus is an average American who found himself at the Supreme Court this term. Mark, the Illinois state employee at the center of Janus v. AFSCME, is a child support specialist. As a state employee, a chunk of his paycheck went to pay the American Federation of State, County and Municipal Employees (AFSCME).
Here’s the problem: Mark Janus is not a member of AFSCME and disagrees with some of their political stances. Yet Illinois has a law that requires all public sector employees to pay dues to the union that represents their profession—even if they are not members. That means Mark was being compelled by the state to pay for speech with which he disagreed.
Fortunately, the court ruled that the practice of requiring non-members to pay union dues is unconstitutional. Writing for the majority, Justice Samuel Alito wrote that the practice of compelling speech is a violation of the freedom of conscience. “When speech is compelled,” he wrote, “individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning.”
Compelled speech requires someone to say something that they do not want to say. Not only is this a violation of an individual’s right to free speech, it is a violation of their right to act according to their own thoughts and beliefs.
What we say – and what we don’t say – is a reflection of who we are and what we think and believe. When government compels people to say things against their will – whether through artistic expression, written speech, or financial support – it is an affront to their God-given dignity. The Framers of our Constitution put in place protections like those in the First Amendment in order to preserve our right to live out our deepest beliefs.
ADF Senior Counsel Jim Campbell wrote an in-depth analysis of these cases and the implications for speech at The Federalist Society.