Richard Duncan, a pro­fessor of law at the Uni­versity of Nebraska, spoke with stu­dents over Zoom.
Andrew Dixon | Collegian

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.