The “no compelled speech doctrine” was designed to nip tyranny and authoritarianism in the bud, according to Richard Duncan, a professor of law at the University of Nebraska College of Law.
In a virtual talk hosted by the Federalist Society on Feb. 4, Duncan explained the meaning of the doctrine and detailed several major cases in which it played a role.
This doctrine, which comes from the First Amendment, focuses primarily on instances when “tyrants use law to compel free men and free women to say things they wish not to say,” Duncan said.
“Ordinary authoritarians are content to forbid people from saying things they know, or believe to be true; totalitarians insist on forcing people to say things they know or believe are untrue,” Duncan said.
Duncan first focused on Minersville School District v. Gobitis, where the Gobitis children, who were Jehovah’s Witnesses, refused to say the Pledge of Allegiance. The children were expelled and the court ruled against the Gobitis’, as “the mandatory pledge requirement did not violate the free exercise rights of religious dissenters,” because though the government cannot interfere with individual expression of belief, the Constitution “does not compel exemption from doing what society thinks necessary for the promotion of celebrate civil end,” Duncan said.
The case was settled in the midst of wartime America, in June 1940 during World War II. According to Duncan, the court’s “overreaction” in its decision was due to a national crisis. This trend is equally as apparent with COVID-19 regulations, Duncan said.
The case of West Virginia State Board of Education v. Barnette in 1943 overturned the court’s previous ruling from the Gobitis case. Duncan said the court’s decision “was not based upon religious liberty and free exercise, but rather replaced intellectual individualism and the free speech rights of the individual religious or not to resist compulsory unification of opinion.”
According to Duncan, the meaning of free speech went from preventing the government from compelling people not to speak, to preventing the government from compelling people to speak at all.
“For the first time the Supreme Court recognized that freedom of speech protects both the right to speak and the right to refrain from speaking,” Duncan said.
Duncan also discussed Wooley v. Maynard, when New Hampshire resident and Jehovah’s Witness George Maynard covered up the ideological message “Live Free or Die” on his license plate.
The state of New Hampshire, “somehow missing the irony of his actions,” prosecuted and convicted Maynard for obscuring information on his license plate, according to Duncan. The U.S. Supreme Court ruled that New Hampshire violated the First Amendment “by compelling an individual to participate in the dissemination of an ideological message by displaying it on his private property,” Duncan said.
The third case Duncan highlighted was Hurley v. The Irish-American Gay, Lesbian, and Bisexual Group of Boston (GLIB). In this case, a leader of the South Boston Allied War Veterans Council John J. Hurley refused to allow the GLIB to march in the council’s St. Patrick’s Day parade. The group appealed to the public accommodations law, which prohibits discrimination of sex, race, or sexual orientation in public spaces.
The state court ruled that Hurley’s discrimination against this group was illegal and that it was “inconsistent with a proper celebration of St. Patrick’s Day,” Duncan said, an event that the judge argued required inclusivity and diversity.
The Supreme Court unanimously ruled that the state courts violated the First Amendment’s protection of speaker autonomy.
The final case Duncan discussed was Telescope Media Group v. Lucero. Carl and Angel Larsen, the owners of Telescope Media Group, a wedding videography business, refused to shoot films that were in conflict with their religious beliefs. Under the Minnesota Human Rights Act, however, the state of Minnesota demanded that the Larsens also include films depicting same-sex marriage in a positive light.
“It is indisputable that the Larsens’ decisions on whether to create a specific film never focused on who the client is, but on what message or event the film will promote or celebrate,” Duncan said.
The state of Minnesota decided that the Larsens’ films were in the realm of public accommodation and thus subject to Minnesota’s Human Rights Act. The Supreme Court, however, ruled that the film was protected by the First Amendment under artistic expression — the Larsens could not be compelled to promote any messages they did not choose to promote.
“Free men and free women must have autonomy over their speech over that which they choose to say and that which they choose not to say,” Duncan said. “I think that covers not just you and me speaking in a public park somewhere, but also wedding videographers, such as the Larsens.”
Sophomore Thomas Curro agreed, adding that many Hillsdale students might find Duncan’s points especially important because of their Christian faith.
“It’s nice sometimes to think about the more general ideas of religious liberty and free speech,” Curro said. “It was really great that he went into these nitty-gritty details of the court cases.”
Sophomore Ryan Carmody called it “the fastest crash-course in free speech jurisprudence” he’d ever heard.
“It was incredibly detailed, incredibly well done, and funny,” Carmody said. “He was a really engaging guy.”
Freshman Olivia Hajicek said it was interesting to learn about what counted as free speech and said she would have liked to heariDuncan’s thoughts on the existence of anti-discrimination laws.
“I would be interested to learn more about whether these anti-discrimination laws are lawful and constitutional in the first place,” Hajicek said, adding that the laws establish motive as a criterion for legal judgment. “Motive is a lot harder to establish, and I think it’s also a dangerous place to be. That’s not the proper role of government.”
Junior and Federalist Society President Leo Schlueter said Duncan was chosen to speak because of the articles he has written on free speech in America. He said he thought the talk was important to today’s society.
“I hope people get a more detailed understanding of the evolution of free speech cases, and maybe a sense for how they’re going to be argued in the future,” Schlueter said.