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Does the First Amendment Protect Against Compelled Speech?

Most people know that the First Amendment protects the right to free speech. In general, this means the government cannot punish someone for voicing their opinions. But what happens when a government entity, such as a school, compels a person to say or do something they don't want to do? For example, can public school students be forced to say the Pledge of Allegiance? The Supreme Court has been trying to answer this question for many years, calling this type of issue "compelled speech."

What the First Amendment Says

Congress shall make no law…abridging the freedom of speech,"

Can Speech Be Forced?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.1 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.2 Speaking in the context of religious freedom, the Court said that, although the freedom to act on one's beliefs could be limited, the freedom to believe what one will is absolute.3 But matters are not so simple.

Flag Salutes and Other Compelled Speech

One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Gobitis,4 the Court had upheld the power of Pennsylvania to expel from its schools certain children —Jehovah's Witnesses—who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.5 But three years later, in West Virginia State Bd. of Educ. v. Barnette,6 a six-to-three majority of the Court overturned Gobitis.7 Justice Jackson, writing for the Court, chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted a compulsion of students to declare a belief. It requires the individual to communicate by word and sign his acceptance of the political ideas the flag bespeaks.8 The power of a state to follow a policy that requires affirmation of a belief and an attitude of mind, however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual creates a clear and present danger that would justify an effort even to muffle expression.9

The rationale of Barnette became the basis for the Court's decision in Wooley v. Maynard,10 which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto Live Free or Die.11 Acting on the complaint of a Jehovah's Witness, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment.12 Nor was there a constitutional violation where compulsory fees were used to subsidize the speech of others.13

Other governmental efforts to compel speech have also been held by the Supreme Court to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,14 a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers' criticism and attacks on their records,15 an Ohio statute that prohibited the distribution of anonymous campaign literature,16 a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message—in this case support for gay rights – that the organizers did not wish to convey,17 and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.18

The principle of Barnette, however, does not extend so far as to bar a government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.19 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.20

By contrast, the Supreme Court has at times found no First Amendment violation when government compels the disclosure of information in a commercial or professional setting. Regarding compelled disclosures in commercial speech, the Court held that an advertiser's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. An advertiser's rights are reasonably protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. The right of a commercial speaker not to divulge accurate information regarding his services is not a fundamental right.21

Moreover, the Court has upheld regulations of professional conduct that only incidentally burden speech. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court considered a law requiring physicians to obtain informed consent before they could perform an abortion.22 Specifically, the law at issue in Casey required doctors to tell their patients prior to an abortion about the nature of the procedure, the health risks involved, the age of the unborn child, and the availability of printed materials from the state about various forms of assistance.23 In a plurality opinion, the Court rejected a free-speech challenge to the informed consent requirement, viewing the law as part of the practice of medicine and an incidental regulation of speech.24

However, the Court has cautioned that reduced scrutiny for compelled commercial and professional speech is limited to particular contexts. For example, limited scrutiny of compelled commercial disclosures is restricted to requirements that professionals provide purely factual and uncontroversial information in their commercial dealings.25 As a result, in considering the constitutionality of a California law requiring certain medically licensed, pro-life crisis pregnancy centers to disclose information to patients about the availability of state-subsidized procedures, including abortions, the Court in National Institute of Family and Life Advocates v. Becerra concluded that the Zauderer rule for compelled disclosures of purely factual, uncontroversial information was inapplicable.26 Specifically, the Court noted that the notice requirements were unrelated to services that the clinics provided and that the notice included information about abortion, anything but an 'uncontroversial' topic.27

In that same ruling, the Court rejected the argument that the California law's disclosure requirements were comparable to the informed consent regulations upheld in Casey.28 In contrast to the law in Casey, the National Institute of Family and Life Advocates Court concluded that the disclosure requirements were not tied to a particular medical procedure and did not require the disclosure of information about the risks or benefits of any medical procedures the clinics provided.29 In this sense, the California law, unlike the informed consent law in Casey, did not incidentally burden speech, but instead regulat[ed] speech as speech.30

The Supreme Court has also found no First Amendment concern with respect to the compelled labeling of foreign political propaganda. Specifically, in Meese v. Keene, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign political propaganda, he must label such material with certain information, including his identity, the principal's identity, and the fact that he has registered with the Department of Justice. The Court found that Congress did not prohibit, edit, or restrain the distribution of advocacy materials. To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.31

Subsidized Speech

It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.32 But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.33

Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes' Dep't v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, such as by being spent to support political candidates.34 In International Ass'n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.35

The Supreme Court held in Janus v. American Federation of State, County, and Municipal Employees, Council 31, that public sector agency-shop arrangements violate the First Amendment,36 overruling a forty-year old precedent, Abood v. Detroit Board of Education, that had generally approved of such arrangements.37 However, even Abood itself had only permitted some aspects of compelled fee regimes,38 and the Court had, for years prior to Janus, signaled its growing discomfort with Abood.39 Understanding the historical course of the jurisprudence governing compelled agency fees is important to understand the ramifications of Janus.

In Abood v. Detroit Bd. of Education,40 the Court found Hanson and Street applicable to the public employment context.41 Recognizing that any system of compelled support restricted employees' right not to associate and not to support, the Court nonetheless found the governmental interests served by an agency shop agreement42—the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom.43 But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union's duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.44 The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.45 Later, the Court further tightened the requirements. A proportionate refund is inadequate because even then the union obtains an involuntary loan for purposes to which the employee objects;46 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union's fee.47 Therefore, the union procedure must also provide for a reasonably prompt decision by an impartial decisionmaker.48

In Davenport v. Washington Education Ass'n,49 the Court noted that, although Chicago Teachers Union v. Hudson had set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,50 it never suggested that the First Amendment is implicated whenever governments place limitations on a union's entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as 'outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.'51 Thus, the Court held in Davenport that the State of Washington could prohibit expenditure of a nonmember's agency fees for election-related purposes unless the nonmember affirmatively consents.52 The Court added that Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.53

And then, in Knox v. Service Employees International Union,54 the Court did suggest constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring non-union members to affirmatively opt out of contributing to political activities was a remarkable boon for unions. Continuing to call opt-out arrangements impingements on the First Amendment rights of non-union members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.55 Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching significant constitutional issues not contained in the questions presented, briefed, or argued. Rather, the concurrence more narrowly found that unions may not collect special political assesments from non-union members who earlier objected to nonchargeable (i.e., political) expenses, and could only collect from nonobjecting nonmembers after giving notice and an opportunity to opt out.56

Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn.57 The Court openly expressed reservations on Abood's central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of labor peace and the problem of free ridership. Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2) Abood's failure to appreciate the distinctly political context of public sector unions; and (3) Abood's dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.58 Notwithstanding these concerns about Abood's core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These partial-public employees were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.59 As a consequence, the Court concluded that Abood,'s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union speech.60

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court formally overruled Abood and held that public sector agency-shop arrangements violate the First Amendment.61 The Court rejected the governmental interests said to justify the compelled fees in Abood holding that labor peace can be achieved through less restrictive means and that the government does not have a compelling interest in avoiding free riders.62 The majority opinion criticized Abood''s extension of Hanson and Street, saying neither of those cases gave careful consideration to the First Amendment and arguing that Abood's reliance on those cases led it to apply an overly deferential standard to analyze public-sector agency fee arrangements.63 In the Court's view, granting too much deference to legislative judgments about the strength of asserted government interests or about whether the challenged action truly supports those interests is inappropriate in deciding free speech issues.64 The Court also disagreed with additional justifications said to justify the agency-shop arrangements, notably holding that they could not be upheld under Pickering v. Board of Education,65 a case in which the Court acknowledged that public employers may sometimes place certain restrictions on employees' speech.66 Accordingly, after Janus, States and public-sector unions may no longer extract agency fees from nonconsenting employees.67

In Ysursa v. Pocatello Education Ass'n,68 the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union's First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.69

The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.70

Unconstitutional Conditions on Speech

In exercise of the spending power, Congress may refuse to subsidize the exercise of First Amendment rights, but may not deny benefits solely on the basis of the exercise of such rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights. What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding—even if the project also receives non-federal funds—provided that the speech limitations do not extend to the use of non-federal funds outside of the federally funded project. In Regan v. Taxation With Representation,71 the Court held that Congress could constitutionally limit tax-exempt status under § 501(c)(3) of the Internal Revenue Code to charitable organizations that do not engage in lobbying. Congress has merely refused to pay for the lobbying out of public moneys, the Court concluded.72 The effect of the ruling on the organization's lobbying activities was minimal, however, since it could continue to receive tax-deductible contributions by creating a separate affiliate to conduct the lobbying.

In FCC v. League of Women Voters,73 by contrast, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds. There was no alternative means, as there had been in Taxation With Representation, by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. The Court rejected dissenting Justice Rehnquist's argument that the general principles of Taxation With Representation and Oklahoma v. Civil Service Comm'n74 should be controlling.75 In Rust v. Sullivan, however, Chief Justice Rehnquist asserted for the Court that restrictions on abortion counseling and referral imposed on recipients of family planning funding under the Public Health Service Act did not constitute discrimination on the basis of viewpoint, but instead represented government's decision to fund one activity to the exclusion of the other.76 In addition, the Court noted, the regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities.77 It remains to be seen what application this decision will have outside the contentious area of abortion regulation.78

In National Endowment for the Arts v. Finley, the Supreme Court upheld the constitutionality of a federal statute requiring the NEA, in awarding grants, to tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.79 The Court acknowledged that, if the statute were applied in a manner that raises concern about the suppression of disfavored viewpoints,80 then such application might be unconstitutional. The statute on its face, however, is constitutional because it imposes no categorical requirement, being merely advisory.81 Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. The 'very assumption' of the NEA is that grants will be awarded according to the 'artistic worth of competing applications,' and absolute neutrality is simply 'inconceivable.'82 The Court also found that the terms of the statute, if they appeared in a criminal statute or regulatory scheme, could raise substantial vagueness concerns. But when the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.83

In contrast, in Agency for International Development v. Alliance for Open Society International, Inc.,84 the Court found that the federal government could not explicitly require a federal grantee to adopt a public policy position as a condition of receiving federal funds. In Alliance for Open Society International, organizations that received federal dollars to combat HIV/AIDS internationally were required: (1) to ensure that such funds were not being used to promote or advocate the legalization or practice of prostitution or sex trafficking and (2) to have a policy explicitly opposing prostitution.85 While the first condition ensured that the government was not funding speech that conflicted with the grant's purposes, the second requirement, in the Court's view, improperly affected the recipient's protected conduct outside of the federal program.86 Further, the Court concluded that the organization could not, as in previous cases, avoid the requirement by establishing an affiliate to engage in opposing advocacy because of the evident hypocrisy that would entail.87 In a follow-on case seven years later, however, the Supreme Court ruled that the First Amendment did not preclude the government from applying this second condition to foreign organizations outside U.S. territory—even with respect to foreign affiliates of U.S. companies.88 Because these affiliates were foreign organizations operating abroad and were legally distinct entities from their U.S. counterparts, the Court concluded they did not possess First Amendment rights.89

In Legal Services Corp. v. Velazquez,90 the Court struck down a provision of the Legal Services Corporation Act that prohibited recipients of Legal Services Corporation (LSC) funds (i.e., legal-aid organizations that provide lawyers to the poor in civil matters) from representing a client who seeks to amend or otherwise challenge existing [welfare] law. This meant that, even with non-federal funds, a recipient of federal funds could not argue that a state welfare statute violated a federal statute or that a state or federal welfare law violated the Constitution. If a case was underway when such a challenge became apparent, the attorney had to withdraw. The Court distinguished this situation from that in Rust v. Sullivan on the ground that the counseling activities of the doctors under Title X amounted to governmental speech, whereas an LSC-funded attorney speaks on behalf of the client in a claim against the government for welfare benefits.91 Furthermore, the restriction in this case distorts the legal system by prohibiting speech and expression upon which courts must depend for the proper exercise of the judicial power, and thereby is inconsistent with accepted separation-of-powers principles.92

In United States v. American Library Association, Inc., a four-Justice plurality of the Supreme Court upheld the Children's Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography and to prevent minors from obtaining access to material that is harmful to them.93 The plurality considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance by requiring public libraries (public schools were not involved in the case) to limit their freedom of speech if they accept federal funds. The plurality, citing Rust v. Sullivan, found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute simply insist[s] that public funds be spent for the purposes for which they were authorized.94 The plurality distinguished Legal Services Corporation v. Velazquez on the ground that public libraries have no role comparable to that of legal aid attorneys that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.95

In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme Court upheld the Solomon Amendment, which provides, in the Court's summary, that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.96 FAIR, the group that challenged the Solomon Amendment, is an association of law schools that barred military recruiting on their campuses because of the military's discrimination against homosexuals. FAIR challenged the Solomon Amendment as violating the First Amendment because it forced schools to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive specified federal funding. The Court concluded: Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.97 The Court found that [t]he Solomon Amendment neither limits what law schools may say nor requires them to say anything. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.98 The law schools' conduct in barring military recruiters, the Court found, is not inherently expressive, and, therefore, unlike flag burning, for example, is not symbolic speech.99 Applying the O'Brien test for restrictions on conduct that have an incidental effect on speech, the Court found that the Solomon Amendment clearly promotes a substantial government interest that would be achieved less effectively absent the regulation.100

The Court also found that the Solomon Amendment did not unconstitutionally compel schools to speak, or even to host or accommodate the government's message. As for compelling speech, law schools must send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. It is plainly incidental to the Solomon Amendment's regulation of conduct.101 As for forcing one speaker to host or accommodate another, [t]he compelled-speech violation in each of our prior cases . . . resulted from the fact that the complaining speaker's own message was affected by the speech it was forced to accommodate.102 By contrast, the Court wrote, Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies.103 Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law that had required the Boy Scouts to accept a homosexual scoutmaster and that the Supreme Court struck down as violating the Boy Scouts' right of expressive association.104 Recruiters, unlike the scoutmaster, are outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school's expressive association.105

More on the First Amendment

When Can the Government Regulate Free Speech?

First Amendment Limits: Obscenity

Brandenburg v. Ohio: Restrictions on Violent Speech


1. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940)United States v. Ballard, 322 U.S. 78 (1944)Torcaso v. Watkins, 367 U.S. 488 (1961)American Communications Ass'n v. Douds, 339 U.S. 382, 408 (1950)Bond v. Floyd, 385 U.S. 116, 132 (1966)Speiser v. Randall, 357 U.S. 513 (1958)Baird v. State Bar of Arizona, 401 U.S. 1, 5–6 (1971), and id. at 9–10 (Justice Stewart concurring).

2. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

3. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

4. 310 U.S. 586 (1940).

5. 310 U.S. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions. Id. at 601.

6. 319 U.S. 624 (1943).

7. Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen. 319 U.S. at 646, 647. Justices Roberts and Reed simply noted their continued adherence to GobitisId. at 642.

8. 319 U.S. at 631, 633.

9. 319 U.S. at 633, 634. See also Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ____, No. 16-1466, slip op. at 9 (2018) (noting that compelled speech imposes a distinct harm by forcing free and independent individuals to endorse ideas they find objectionable).

10. 430 U.S. 705 (1977).

11. The state had prosecuted vehicle owners who covered the motto on their vehicle's license plate.

12. As to the question of whether one can be required to allow others to speak on his property, compare the Court's opinion in PruneYard Shopping Center v. Robins, 447 U.S. 74, 85–88 (1980) (upholding a state requirement that privately owned shopping centers permit others to engage in speech or petitioning on their property) with Justice Powell's concurring opinion in the same case, id. at 96 (would limit the holding to situations where a property owner did not feel compelled to disassociate themselves from the permitted speech).

13. The First Amendment does not preclude a public university from charging its students an activity fee that is used to support student organizations that engage in extracurricular speech, provided that the money is allocated to those groups by use of viewpoint-neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 529 U.S. 217 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds). Nor does the First Amendment preclude the government from compel[ling] financial contributions that are used to fund advertising, provided that such contributions do not finance political or ideological views. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture's marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). But, for compelled financial contributions to be constitutional, the advertising they fund must be, as in Glickman, ancillary to a more comprehensive program restricting marketing autonomy and not the principal object of the regulatory scheme. United States v. United Foods, Inc., 533 U.S. 405, 411, 412 (2001) (striking down Secretary of Agriculture's mandatory assessments, used for advertising, upon handlers of fresh mushrooms). The First Amendment is, however, not violated when the government compels financial contributions to fund government speech, even if the contributions are raised through a targeted assessment rather than through general taxes. Johanns v. Livestock Marketing Ass'n, 544 U.S. 550 (2005).

14. Riley v. National Fed'n of the Blind of North Carolina, 487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who has retained 85 percent of gross receipts from donors, but falsely represented that a significant amount of each dollar donated would be paid over to a charitable organization, could be sued for fraud.

15. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Comm'n, 475 U.S. 1 (1986), a Court plurality held that a state could not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees.

16. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).

17. Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995).

18. See Nat'l Inst. of Family and Life Advocates v. Becerra, 585 U.S. ___, No. 16-1140, slip op. at 7 (2018). Specifically, in National Institute of Family and Life Advocates v. Becerra, the Court reviewed a California law that, in relevant part, required medically licensed crisis pregnancy centers to notify women that the State of California provided free or low-cost services, including abortion. Id. at 2–4 (describing the California law). For the Court, [b]y requiring [licensed clinics] to inform women how they can obtain state-subsidized abortions—at the same time [those clinics] try to dissuade women from choosing that option, the California law plainly alters the content of the clinics' speech, subjecting the law to heightened scrutiny. Id. at 7 (internal citations and quotations omitted).

19. Cole v. Richardson, 405 U.S. 676 (1972)Connell v. Higginbotham, 403 U.S. 207 (1971)Bond v. Floyd, 385 U.S. 116 (1966)Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-judge court), aff'd, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff'd, 390 U.S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court), aff'd, 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971)Fields v. Askew, 279 So. 2d 822 (Fla. 1973)aff'd per curiam, 414 U.S. 1148 (1974).

20. Compare Bond v. Floyd, 385 U.S. 116 (1966)with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).

21. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985)See Milavetz, Gallop, & Milavetz v. United States, 559 U.S. ___, No. 08-1119 (2010), slip op. at 19–23 (requiring advertisement for certain debt relief businesses to disclose that the services offered include bankruptcy assistance).

22. See 505 U.S. 833, 881 (1992) (plurality opinion).

23. Id.

24. Id. at 884.

25. See, e.g.Nat'l Inst. of Family and Life Advocates v. Becerra, 585 U.S. ___, No. 16-1140, slip op. at 8 (2018).

Moreover, even under Zauderer, commercial disclosure requirements cannot be unjustified or unduly burdensome. See 471 U.S. at 651. Applying this limit on the Zauderer rule, the National Institute of Family and Life Advocates Court reviewed a separate provision of the California law discussed above that required unlicensed crisis pregnancy centers to notify women that California has not licensed the clinics to provide medical services. Id. at 4–5 (describing the requirements for the unlicensed centers). The Court, noting the lack of evidence in the record that pregnant women were unaware that the covered facilities were not staffed by medical professionals and remarking on the breadth of the regulations that required a posting of the notice no matter what the facilities say on site or in their advertisements, concluded that the regulations of unlicensed crisis pregnancy centers unduly burdened speech. Id. at 18–19.

26. Id. at 9.

27. Id.

28. Id. at 11.

29. Id.

30. Id. Having concluded that the California disclosure requirements for licensed crisis pregnancy centers should be evaluated under a more rigorous form of scrutiny than what the Court employed in Zauderer or Casey, the National Institute of Family and Life Advocates Court, employing intermediate scrutiny, held that the California law likely violated the First Amendment. Id. at 14. Specifically, the Court viewed the law to be both underinclusive—the law excluded several similar clinics without explanation—and overinclusive—the state could have employed other methods, such as a state-sponsored advertising campaign, to achieve its purpose of informing low-income women about its services without burdening a speaker with unwanted speech. Id. at 14–16 (internal citations omitted).

31. Meese v. Keene, 481 U.S. 465, 480 (1987).

32. The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537, 29 U.S.C. §§ 411-413, enacted a bill of rights for union members, designed to protect, among other things, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects.

33. Section 8(a)(3) of the Labor-Management Relations Act of 1947, 61 Stat. 140, 29 U.S.C. § 158(a)(3), permits the negotiation of union shop agreements. Such agreements, however, may be outlawed by state right to work laws. Section 14(b), 61 Stat. 151, 29 U.S.C. § 164(b). See Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949)AFL v. American Sash & Door Co., 335 U.S. 538 (1949). In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 U.S.C. § 152, Eleventh; see Railway Employes' Dep't v. Hanson, 351 U.S. 225 (1956).

34. 351 U.S. 225, 238 (1956).

35. 367 U.S. 740, 749–50 (1961). Justices Douglas, Black, Frankfurter, and Harlan would have reached the constitutional issue, with differing results. On the same day that it decided Street, the Court, in Lathrop v. Donohue, 367 U.S. 820 (1961), declined to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an integrated bar. These issues, however, were faced squarely in Keller v. State Bar of California, 496 U.S. 1, 14 (1990), which held that an integrated state bar may not, against a members' wishes, devote compulsory dues to ideological or other political activities not necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.

36. 585 U.S. ___, No. 16-1466, slip op. at 33 (2018).

37. 431 U.S. 209, 229 (1977).

38. Id. at 235.

39. See, e.g.Harris v. Quinn, 573 U.S. ___, No. 11-681, slip op. (2014). In Friedrichs v. California Teachers Association the Court was equally divided on the question of whether to overrule Abood. 578 U.S. ___, No. 14-915, slip op. at 1 (2016).

40. 431 U.S. 209 (1977).

41. That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Streetid. at 226–32, but, in a concurring opinion joined by Chief Justice Burger and Justice Blackmun, Justice Powell found the distinction between public and private employment crucial. Id. at 244.

42. An agency shop agreement requires all employees, regardless of union membership, to pay a fee to the union that reflects the union's efforts in obtaining employment benefits through collective bargaining. The Court in Abood noted that it is the practical equivalent of a union shop agreement. 431 U.S. at 217 n.10.

43. 431 U.S. at 217–23. For a similar argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978), and id. at 802, 812–21 (Justice White dissenting).

44. 431 U.S. at 232–37.

45. 431 U.S. at 237–42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). A local union may also charge nonmembers a fee that goes to the national union to pay for litigation expenses incurred on behalf of other local units, but only if (1) the litigation is related to collective bargaining rather than political activity, and (2) the litigation charge is reciprocal in nature, i.e., other locals contribute similarly. Locke v. Karass, 129 S. Ct. 798, 802 (2009).

46. Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 444 (1984).

47. Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).

48. 475 U.S. at 309.

49. 551 U.S. 177 (2007).

50. 551 U.S. at 181, citing 475 U.S. 292, 302, 304–310 (1986).

51. 551 U.S. at 185, quoting Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990), and adding emphasis.

52. 551 U.S. at 184.

53. 551 U.S. at 184 (citations omitted).

54. 567 U.S. ___, No. 10-1121, slip op. (2012) .

55. Id. at 17 (Alito, J., joined by Roberts, C.J., and by Scalia, Kennedy, and Thomas, JJ.).

56. 567 U.S. ___, No. 10-1121, slip op. (2012) (Sotomayor, J., joined by Ginsburg, J., concurring).

57. 573 U.S. ___, No. 11-681, slip op. (2014).

58. Id. at 8–20.

59. Id. at 24–27.

60. Id. at 27.

61. 585 U.S. ___, No. 16-1466, slip op. at 33 (2018).

62. Id. at 12–13.

63. Id. at 36.

64. Id. at 37.

65. 391 U.S. 563 (1968).

66. Janus, slip op. at 26.

67. Id. at 48.

68. 129 S. Ct. 1093 (2009).

69. 129 S. Ct. at 1098. The unions had argued that, even if the limitation was valid as applied at the state level, it violated their First Amendment rights when applied to local public employers. The Court held that a political subdivision, created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator. Id. at 1101, quoting Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933).

70. Madison School Dist. v. WERC, 429 U.S. 167 (1977).

71. 461 U.S. 540 (1983).

72. 461 U.S. at 545. See also Cammarano v. United States, 358 U.S. 498, 512–13 (1959) (exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses is not a regulation aimed at the suppression of dangerous ideas, and does not violate the First Amendment).

73. 468 U.S. 364 (1984).

74. 330 U.S. 127 (1947).

75. 468 U.S. at 399–401, & n.27.

76. 500 U.S. 173, 193 (1991). Dissenting Justice Blackmun contended that Taxation With Representation was easily distinguishable because its restriction was on all lobbying activity regardless of content or viewpoint. Id. at 208–09.

77. 500 U.S. at 196. Dissenting Justice Blackmun wrote: Under the majority's reasoning, the First Amendment could be read to tolerate any governmental restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past. Id. at 213.

78. The Court attempted to minimize the potential sweep of its ruling in Rust. This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipient to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression. 500 U.S. at 199. The Court noted several possible exceptions to the general principle: government ownership of a public forum does not justify restrictions on speech; the university setting requires heightened protections through application of vagueness and overbreadth principles; and the doctor-patient relationship may also be subject to special First Amendment protection. (The Court denied, however, that the doctor-patient relationship was significantly impaired by the regulatory restrictions at issue.) Lower courts were quick to pick up on these suggestions. Seee.g., Stanford Univ. v Sullivan, 773 F. Supp. 472, 476–78 (D.D.C. 1991) (confidentiality clause in federal grant research contract is invalid because, inter alia, of application of vagueness principles in a university setting); Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (offensiveness guidelines restricting Center for Disease Control grants for preparation of AIDS-related educational materials are unconstitutionally vague).

79. 524 U.S. 569, 572 (1998).

80. 524 U.S. at 587.

81. 524 U.S. at 581. Justice Scalia, in a concurring opinion joined by Justice Thomas, claimed that this interpretation of the statute gutt[ed] it. Id. at 590. He believed that the statute establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional. Id.

82. 524 U.S. at 585.

83. 524 U.S. at 588–89.

84. 570 U.S. 205 (2013).

85. Id. at 208 (quoting 22 U.S.C. § 7631(e), (f) (2012).

86. See id. at 217–19.

87. Id. at 219.

88. Agency for Int'l Dev. v. All. for Open Soc'y, 140 S. Ct. 2082, 2087 (2020).

89. Id.

90. 531 U.S. 533 (2001).

91. 531 U.S. at 541, 542.

92. 531 U.S. at 544, 546.

93. 539 U.S. 194, 199 (2003).

94. 539 U.S. at 211.

95. 539 U.S. at 213. Other grounds for the plurality decision are discussed under Non-obscene But Sexually Explicit and Indecent Expression and The Public Forum.

96. 547 U.S. 47, 51 (2006).

97. 547 U.S. at 60. The Court stated that Congress's authority to directly require campus access for military recruiters comes from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide and maintain a navy. Id. at 58.

98. 547 U.S. at 60.

99. 547 U.S. at 64, 65.

100.547 U.S. at 67.

101.547 U.S. at 61, 62.

102.547 U.S. at 63.

103.547 U.S. at 65.

104.547 U.S. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000).

105.547 U.S. at 69.

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