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Indiana Law Journal

Document Type

Symposium

Publication Date

Spring 2022

Publication Citation

97 Indiana Law Journal 881 (2022)

Abstract

Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the most hotly contested free speech disputes the Court has addressed in recent years. For instance, in National Institute of Family & Life Advocates v. Becerra, the Court invalidated provisions of a California law requiring self-styled “crisis pregnancy centers” to post and distribute truthful information about the availability of statesponsored services, including abortion, for pregnant women and, where the centers were not licensed to provide medical services, to disclose that fact. The Court held that the First Amendment prohibits such compelled speech unless the disclosure is “purely factual and uncontroversial,” and that abortion is “anything but an ‘uncontroversial’ topic.” If this is the appropriate legal standard, then the doctrine must grapple with defining what makes facts controversial or not. This is problematic for a number of reasons. First, facts, as opposed to ideas, would not ordinarily be labeled as controversial. Second, because we are now living in a time of epistemic chaos in public discourse, virtually any fact is now open to dispute, and thereby controversial. Finally, because of increasingly polarizing contemporary debates about the very role of government, the controversial fact standard risks devolving into an infinite regress to the point where every fact is controversial because the role of government regulation is itself controversial. If the Court does not articulate clear and substantial limiting principles, widespread application of the compelled speech doctrine ultimately will result in challenges to all government disclosure requirements, undermining critical components of the regulatory state.

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