Rights Ancillary to Freedom of Speech

Section 1. Compelled Speech: The Right NOT to Speak

West VA. Bd. of Educ. v. Barnette (children saluting Flag)

Freedom of speech includes right not to speak- can’t be compelled to speak what not on your mind

The freedom to differ isn’t limited to things that don’t matter much but extends to things which touch the heart.

Wooley v. Maynard

State had license plates with words “Live Free or Die” & the Maynards found it offensive & covered it up

Ct. relied heavily on Barnett & said this is also compelled speech which can’t be done

Freedom of thought “includes both the right to speak freely & the right to refrain from speaking at all” and they are “complimentary components of freedom of mind”

Compelled disclosure of speaker identity

Talley v. California

LA ordinance which prohibited handbill distribution unless speaker identified

Ct. held ordinance void on face & it would restrict freedom of expression & anonymity of leaflets is engrained in history

McIntyre v. Ohio Electives Committee

Respected tradition of anonymity in the advocacy of political causes

We apply exacting scrutiny- which must be narrowly tailored when have passing out of leaflets (doesn’t apply same to $ given to political campaigns)

Compelled Access for the Speech of Others

Compelled Rights of Reply

Red Lion v. FCC

FCC controls here & so rules different & so can compel fairness here (repealed now)

Miami Herald v. Tornillo

Newspapers can’t be compelled to print certain reply info in the paper

Its compelled speech & not allowed- its private newspaper

Compelled Access by Speakers to Private Property

Pruneyard Shopping Center v. Robins

Since Pruneyard was open to the public, the views expressed in passing out pamphlets or seeking signatures “will not likely be identified w/ those of the owner”

Here, Cali State constitution gave the speakers greater rights than Fed & the mall owner didn’t pick out a message it disagreed with

PG& E v. Public Utility Commission

Message in the customer bills was objected to by PG&E & commission tried compel PG&E to send it out

Ct. invalidate it & said corporation has same speech rights as individuals & can’t compel them to speak things that are opposed to

Also this was “content-based” legislation so bad!

Turner Broadcasting v. FCC

Acceptation to general rule against compelled expression

Ct. said was content neutral & true was a substantial gov. interest in getting free TV to the public, but said no evidence that narrowly tailored so remand

Turner II

After hearings & evidence put on Ct. agree satisfied the intermediate scrutiny & was important & narrowly tailored

There are different rules for Radio & TV case regulated by FCC

Compelled Access to a Parade

Hurley v. Irish-American GLIB of Boston

Unanimous Opinion

Privately organized parade which disallowed GLIB-state court said can’t

Sup. Ct. said private organization just disallowed a message it disagreed w/ cause didn’t want it to be considered as their message

Compelled Speech & Military Recruiting on Campus

Rumsfeld v. Forum for Academic & Institutional Rights

Challenge to the Solomon Amend which says if you don’t let military recruiters on campus to recruit then you don’t get fed funds

Law Schools challenged due to “Don’t ask, Don’t Tell” policy & it being discrimination on orientation

Ct. unanimously upheld cause based on conduct not speech.

Section 2. Freedom of Expressive Association

“an individuals freedom to speak, worship, and to petition the gov. for the redress of grievances could be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed”

But court has tended to view the right of association as dependent on underlying individual rights of expression

There is not right of association in the abstract

The right to associate entails a right not to associate, comparable to the right not to speak

Association in Public & Private entails right of expression-usually political

Compelled Disclosure of Membership

NAACP v. Alabama

Effective advocacy of both public & private points of view, particularly controversial ones, is undeniably enhanced by group association

There is a close nexus btwn freedoms of speech & assembly

It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny

There is vital relationship between freedom to associate & privacy in one’s association

Requirements to disclose your membership is assumed to interfere w/ privacy in association & can lead to harassment, threats, etc.

Shelton v. Tucker

Teacher required list every year every organization belonged to in last 5 years

Yes state has an interest in investigating a teachers fitness but compelled disclosure is assumed to impair the teachers right of free association

The means here were not narrowly tailored to effectuate the state interest

Gibson v. Florida Legislative Investigation Comm

It is an essential prerequisite that the State convincingly show a substantial connection btwn the info sought and a subject of overriding & compelling state interest.

Absent such a nexus, the committee has not demonstrated so cogent an interest in obtaining & making pubic the member info sought so as to justify the substantial abridgment of associational freedom which such disclosures will effect.

The associational right is strong, especially strong where the groups beliefs are already unpopular and we want to avoid a chilling effect

Compelled Disclosure of Political Contributions

Buckely v. Valeo

The gov. has 3 pretty compelling interests under Strict Scrutiny which here outweigh the single contributor’s interests in...

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