What Is the Compelled Speech Doctrine Under the First Amendment?

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At the heart of the case the Supreme Court is hearing on Monday is a First Amendment principle that the government cannot force people to express ideas against their will, and how it applies to a website maker who wants to be able to sell wedding site services to heterosexual couples but not same-sex couples — despite a Colorado anti-discrimination law.

Under what is known as the compelled speech doctrine, the First Amendment’s free speech protections extend beyond generally keeping the government from suppressing people from saying what they want: It also generally bars the government from compelling people to express things they do not want to say.

In a classic example, the Supreme Court struck down requirements that public school students salute the American flag and recite the Pledge of Allegiance.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Robert Jackson wrote in the 1943 decision.

But the court has also set limits, especially in commercial or professional settings, such as upholding requirements that certain types of advertisements include various factual disclosures.

The case on Monday centers on a Colorado law that bars businesses from discriminating on the basis of sexual orientation and whether it violates the First Amendment by compelling a website designer who opposes gay marriage because of her religious beliefs to provide services to same-sex couples if her company sells wedding site services to opposite-sex couples.

One question raised by the dispute is what counts as speech. The designer, Lorie Smith, argues that the law forces her to implicitly express support for unions she disagrees with. Colorado, however, has argued that the law itself regulates only sales, not the things being sold, and said the mere act of selling things is not expressive conduct.

If the justices conclude that selling wedding website services to same-sex couples amounts to speech, it would raise a second question: whether the circumstances — where the state is trying to ensure equal access to commercially available goods and services — makes this dispute fall into the zone of commercial or professional settings where precedents have said the First Amendment can tolerate some regulation of speech.

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