Compelled Commercial Speech and the First Amendment

Martin H. Redish*

For the most part, the First Amendment is viewed as a means of restricting government’s authority to suppress expression. Both speakers and listeners are assumed to benefit from speech, and, therefore, the more communication of opinion and information, the better it is for both society and the democratic system. However, for a variety of important reasons, the courts have extended First Amendment protection to limit government’s power to compel expression by private individuals and entities. The Court has wisely recognized that governmental compulsion to speak can often bring about many of the very same constitutional and democratic pathologies brought on by suppression.¹

Despite their overlapping similarities, suppression and compulsion of speech have by no means been viewed as identical for First Amendment purposes by the Court.² On occasion, the Court has recognized that governmentally compelled speech may actually advance First Amendment interests more than undermine them.³ Beginning with the work of famed free speech theorist Alexander Meiklejohn,⁴ it has been widely recognized—even by the Court⁵—that the First Amendment right belongs at least as much to the listener as it does to the speaker.⁶ After all, one can evolve morally, intellectually, or personally as much by reading great works of literature, science, or political theory as by expressing one’s own views on the subject. Moreover, as Meiklejohn argued, if the First Amendment “springs from the necessities of . . . self-government,”⁷ the voters—whom Meiklejohn called the true “governors” in a democratic society⁸—need to receive and absorb as much information and opinion as possible in order for the process of self-government to operate effectively. While Meiklejohn made the mistake of wishing to confine the First Amendment to this listener perspective, he was surely correct in recognizing the value of expression to the listener.

As a general matter, governmental suppression of all but the most consciously false communication undermines both listener- and speaker-centric values of free expression: the speaker is harmed by not being able to speak, and the listener is harmed by not being allowed to listen, see, or hear the intended communication. The constitutional analysis of governmentally compelled speech, however, is considerably more complicated, and, unfortunately, the Court has failed to provide a coherent theoretical explanation of its decisions on the subject. Even if the speaker is compelled to communicate against her will, thereby triggering the constitutional pathologies normally associated with compelled speech,⁹ it is at least conceivable that such forced speech could benefit the recipients of the expression by providing them with valuable information that could conceivably aid them in the making of self-governing decisions, whether of the political or private varieties.¹⁰ In this sense, compelled speech may actually further First Amendment values, by providing potentially valuable information to the voters that will aid them in performance of their self-governing function. In so doing, compelled speech enhances the intersection of democracy and free expression.

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© 2019 Martin H. Redish. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University Pritzker School of Law. The author wishes to express his thanks to Abigail Sexton of the class of 2020 at Northwestern Law for her invaluable research assistance.

1 See infra Part II.

2 See infra Part III.

3 See, e.g., Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).

4 See generally Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (1965).

5 See, e.g., Red Lion Broad. Co., 395 U.S. at 390.

6 Meiklejohn actually believed the right to be exclusively that of the listener; the speaker, he argued, should be deemed to have no independent First Amendment right. See Alexander Meiklejohn, Free Speech and its Relation to Self-Government (1948). However, one not need accept so extreme and questionable a position in order to conclude that an important element of the First Amendment right belongs to the listener. See infra Section III.B.

7 Meiklejohn, supra note 6, at 26.

8 Meiklejohn, supra note 4, at 9 (“If men are to be governed, we say, then that governing must be done, not by others, but by themselves.”).

9 See infra Section II.B.

10 For a discussion of the differences and similarities between political and private forms of self-government, see Martin H. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 22–29 (2001).