Selecting Scrutiny in Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests-and-Values Alternative
Clay Calvert
Article

  The full text of this Article may be found here.

31 Fordham Intell. Prop. Media & Ent. L.J. 1 (2020).

Article by Clay Calvert*

ABSTRACT

[T]

his Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in a factually eclectic collection of 2019 cases. Specifically, it focuses on the methodologies for determining scrutiny and how, in turn, Becerra and Janus influence those tacks. The right-not-to-speak cases addressed here concern the government requiring: (1) building owners to post small warning notices about a structure’s construction; (2) real estate developers to either display or fund public-facing art; (3) newspapers to disclose facts online about buyers of political advertisements; (4) groups registering voters to give disclaimers to those with whom they interact; (5) registered sex offenders to display warning signs in front of their residences proximate to Halloween; and (6) business operators to create expressive products (wedding invitations and videos) celebrating same-sex marital unions. Courts selected strict scrutiny in all but one of these diverse circumstances and  often were influenced by Becerra and/or Janus in doing so, but was that rigorous standard appropriate? Does its application, in other words, amount to judicial overkill against the handiwork of law-makers? The Article argues that if courts in some of these settings used a First Amendment interests-and-values approach for determining scrutiny—a path favored by Justice Stephen Breyer—instead of a simplistic, long-standing formula pivoting on whether a law is content-based or content-neutral, then they might have deployed a less stringent test that better balanced competing interests. The Article identifies five First Amendment interests and values for resolving scrutiny in a more nuanced fashion in future compelled-speech disputes.

* Professor of Law, Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. The author thanks University of Florida students Olivia Baruch, Jackson McMillan and Gabriella Solomon for their helpful reviews of early drafts of this Article. Additionally, the author thanks the faculty of the University of Florida Levin College of Law for their feedback and input at a workshop for a draft of this Article in January 2020.