Free speech has become so politically polarized that I fear that the First Amendment is losing its legitimacy as a non-partisan tool. Without consideration of ultimate viewpoint, the First Amendment safeguards dissenting voices, promotes expressive autonomy, and fosters both the search for truth and genuine participation in our democracy. Some increasingly argue, however, that the First Amendment has become a Lochnerian de-regulatory political tool, while their opponents believe that respect for the First Amendment has waned simply because it has become politically inconvenient.
I am working on a paper, with publication forthcoming in the Florida International University Law Review for the Symposium on the 75th Anniversary of West Virginia v. Barnette, that looks at some of our most politicized current First Amendment issues using the lens of a case that may reverse any political inclinations we apply when interpreting the First Amendment. I explore how West Virginia v. Barnette, which held that public school students cannot be forced to salute the flag, is both similar and dissimilar to our modern compelled speech cases. I also propose some solutions to cases like Masterpiece Cakeshop and Janus. The paper is forthcoming on SSRN, but I wanted to post the current draft abstract here.
This Essay applies to modern controversies the much-revered case of West Virginia Board of Education v. Barnette, which held that public school students may not be forced to stand and salute the American flag. I explore Barnette’s application to what I call the “good orthodoxy” context. In good orthodoxy cases, the individual claiming a right against compelled speech seeks to overturn a law or policy that was designed to remedy the harms committed against historically marginalized groups. Examples include diversity statements professors must write, public accommodations laws requiring the production of cakes and photographs, and compelled union dues that fund workers’ rights advocacy
These good orthodoxy cases are both similar to and different from the facts presented by Barnette, where the Supreme Court held that the state cannot compel “unanimity of opinion” in support of patriotism or nationalism. In these examples, new groups of dissenters are created in response to policies designed to protect historically marginalized or disadvantaged groups — instead of laws designed to compel respect for authority. Barnette specifically noted that it did not involve a clash of rights, whereas in the good orthodoxy cases, civil rights clash against civil liberties. However, Barnette cautioned that freedom to differ is empty if it applies only to unimportant issues.
Because of the differences between Barnette and the modern good orthodoxy cases, I argue that courts should be cautious before holding that the modern cases implicate pure speech. But where pure speech is implicated, these laws or policies should be generally overturned as failing to satisfy strict scrutiny. Specifically, dignitary interests designed to protect individuals’ sense of acceptance in the community should generally be considered insufficient to compel unanimity of opinion, and indeed, dignitary interests often indicate that what is being imposed is conformity to particular values.