Justice Thomas on compelled speech

Monday, October 8, 2007


This article is part of an online symposium on the First Amendment Center
Online concerning Supreme Court Justice Clarence Thomas’s First Amendment

“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,” Justice Robert Jackson famously wrote in
Virginia State Board of Education v. Barnette
(1943), the landmark and
singularly eloquent case on compelled speech. “If there are any circumstances
which permit an exception, they do not now occur to us.”

Exceptions have occurred to Justice Jackson’s successors — Justice Clarence
Thomas, for example, analyzed some in three cases in which he filed separate
opinions. Whereas the Barnette children sought an exemption from the classroom
Pledge of Allegiance — a government effort to promote patriotism — each of the
three Thomas cases addressed efforts to promote an American food industry:

Barnette answered a simple question: whether schoolchildren must
salute the flag. (Though the families were Jehovah’s Witnesses objecting on
religious grounds, the Court treated it as a free-speech case.) The cases
involving food promotion involve more complicated facts: (1) The speech is
commercial rather than political or ideological; (2) the government compels
companies to subsidize the commercial speech, but not to speak directly; (3) in
some instances, the compelled assessments to finance the speech are relatively
minor aspects of a far-reaching regulatory regime; and (4) the promotional
message is formulated by industry leaders collaborating with government
officials. The Court has stressed all four points.

In the compelled-speech realm, Justice Thomas believes that the First
Amendment should be construed broadly; he would strike down programs that the
Court would uphold. To him, the first three factors listed above are irrelevant.
Commercial speech warrants the same constitutional protection as political or
ideological speech. Being forced to subsidize advertising, further, implicates
the First Amendment no less than being forced to speak does. And speech is
speech, whether an industry is regulated heavily or lightly.

But, for Justice Thomas and the Court as a whole, the First Amendment has a
loophole here. If the government establishes the overarching goal of the
promotional campaign and retains the power to veto a particular message, First
Amendment concerns all but vanish.

3 cases, 3 approaches
In the first case, Glickman, the Court
upheld the compelled payments to support a promotional campaign. By contrast to
the flag salute in Barnette, advertising that promotes fruit “cannot be
said to engender any crisis of conscience” on the part of growers forced to
subsidize the message. So Justice John Paul Stevens wrote for the Court.
Further, the fruit-growers operated under a regime that “displac[ed]
unrestrained competition with government supervised cooperative marketing
programs.” In an industry honeycombed with regulations, mandatory payments for
promotional campaigns are “simply a question of economic policy for Congress and
the Executive to resolve,” not a First Amendment question at all.

In United Foods, the Court applied the last of the Glickman
factors, the scope of regulation, to strike down compulsory subsidization of
mushroom ads. Writing for the Court, Justice Anthony Kennedy wrote: “In
Glickman, the mandated assessments for speech were ancillary to a more
comprehensive program restricting marketing autonomy. Here, for all practical
purposes, the advertising itself, far from being ancillary, is the principal
object of the regulatory scheme.”

To Justice Thomas, the compelled payments for advertising in both cases
violated the First Amendment. Dissenting in Glickman and concurring in
United Foods, he reiterated his belief that commercial speech merits full
constitutional protection. (To date, no other justice has adopted this
viewpoint.) In Glickman, he also wrote that “paying money for the
purposes of advertising involves speech.” And he dismissed the Court’s
suggestion that extensive regulation renders the First Amendment inapplicable.
“It is one thing to differ about whether a particular regulation involves an
‘abridgment’ of the freedom of speech,” he wrote in Glickman, “but it is
entirely another matter — and a complete repudiation of our precedents — for the
majority to deny that ‘speech’ is even at issue in this case.”

Justice Stevens’ majority opinion, Thomas added in Glickman, means
either that “(1) paying for advertising is not speech at all, while such
activities as draft card burning, flag burning, armband wearing, public
sleeping, and nude dancing are, or (2) compelling payment for third party
communication does not implicate speech, and thus the Government would be free
to force payment for a whole variety of expressive conduct that it could not
restrict. In either case, surely we have lost our way.”

Part of Justice Thomas’ second reading of Glickman, the scope of
government control over the message, proved decisive in the next case.

The government-speech defense
In Johanns, the government
advanced a new argument. The government controlled the message. It had,
essentially, final cut. So extensive was its control, in fact, that the speech
amounted to “government speech.” (The United States had advanced this argument
in United Foods, but because it hadn't been raised in lower courts, the
justices didn't consider it.)

The Court in Johanns, for the first time, explained the constitutional
import of characterizing speech as “government speech”: “[T]he Government's own
speech … is exempt from First Amendment scrutiny.” How can government speech
be distinguished from compelled speech in cases about promotional advertising?
Even if government officials collaborate with private individuals or entities,
Justice Antonin Scalia wrote for the Court, the result remains government speech
if “the government sets the overall message to be communicated and approves
every word that is disseminated.”

The Court did note a possible exception (“we express no view on the
point”) to the government-speech defense: If the speech implies that individuals
or entities endorse the message when in truth they object to it, strict First
Amendment scrutiny may be warranted. For this theoretical exception to apply,
the Court suggested, the putative sponsoring group must be relatively small and

In Johanns, “America's Beef Producers,” Justice Scalia wrote, is on
its face too broad a term “to convince a reasonable factfinder that any
particular beef producer, or all beef producers, would be tarred with the
content of each trademarked ad.” If a dissenting beef producer came forward with
evidence to the contrary, indicating that much of the audience did assume
that every beef producer endorsed the message, the result might be different,
but the trial record in Johanns “is altogether silent” on the matter.

In a concurring opinion, Justice Thomas agreed that the government-speech
doctrine provides a strong defense. Although he had written in United
that “[a]ny regulation that compels the funding of advertising must be
subjected to the most stringent First Amendment scrutiny,” he acknowledged in
Johanns that “this principle must be qualified where the regulation
compels the funding of speech that is the government's own.” Thomas went further
than the majority and flatly said that the First Amendment would — not might,
would — invalidate government speech if it falsely indicated sponsorship by a
dissenting individual or organization.

Justice Thomas and compelled speech
In sum, and contrasted to the
Court as a whole, Justice Thomas envisions more spacious First Amendment
protection for a type of compelled speech – compulsory assessments to fund
advertising that promotes an industry. But Johanns has narrowed the

Johanns offers a blueprint for the government to avoid First Amendment
problems when exacting money to promote an industry: The government must “set[]
the overall message to be communicated and approve[] every word that is
disseminated.” On this point Justice Thomas agrees with the Court. He remains a
minority of one in his view that commercial speech merits full-fledged First
Amendment protection; however, the distinction between commercial and
noncommercial speech doesn't arise in government-speech cases.

Justice Thomas would in addition find a First Amendment violation where a
message implies endorsement by those who in fact object to it; the Court
seemingly agrees, though it has left the question open. Future cases may help
demarcate the bounds of the endorsement exception, if it does in fact exist.
When is a group small enough that a message in its name will be ascribed to each
member? If members of “America's Beef Producers” are sufficiently numerous to
avoid the problem, what of members of “Muncie’s Funeral Directors”?

Classroom contradiction

As his opinions in Glickman and United Foods illustrate,
Justice Thomas places commercial speech at the pinnacle of First Amendment
protection. Speech by schoolchildren, however, is another story altogether.

“As originally understood, the Constitution does not afford students a right
to free speech in public schools,” Thomas asserted, concurring in Morse
v. Frederick
(2007), the “BONG HiTS 4 JESUS” case. In a footnote, he
observed that a teacher could not only silence a disruptive student, but also
force a student to talk: Courts of the 19th century “upheld punishment when
children refused to speak after being requested to do so by their teachers.”

Here a contradiction arises. In Johanns, Justice Thomas distinguished
the burden of paying taxes to support government speech from the more
“intrusive” requirement to “utter what is not in [one’s] mind.” The last phrase,
quoted with approval, comes from Barnette. Yet if the First Amendment's
free-speech clause doesn't apply to public schools, as Thomas’ Morse v.
concurrence suggests, then Barnette was wrongly decided:
The Jehovah’s Witness children should have been forced to salute the flag.
Although Justice Thomas almost certainly wouldn’t overturn this historic ruling
on free speech, consistency would require him to do so: Barnette is,
after all, not merely a case about compelled speech, but a case about compelled
speech in public schools.

Stephen Bates is an assistant professor at the Hank Greenspun School of
Journalism & Media Studies at the University of Nevada, Las Vegas. He is
also a contributing editor of the
Wilson Quarterly. Bates is the author
Secularization and Its Discontents (Yale University Press,
forthcoming) and four other books on political advertising; media and Congress;
an anecdotal history of American journalism; and the role of religion in the
public schools.

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