{"id":923,"date":"2015-07-19T14:49:25","date_gmt":"2015-07-19T14:49:25","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=923"},"modified":"2025-03-04T20:14:06","modified_gmt":"2025-03-04T20:14:06","slug":"compelled-speech","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/compelled-speech\/","title":{"rendered":"Compelled speech"},"content":{"rendered":"


\u00a0William Tell is arrested for refusing to salute a Swiss ruler’s hat. (Swiss National Museum<\/a>,\u00a0Hans Sandreuter<\/a>, 1901).<\/p><\/div>\n

 <\/p>\n

Compelled (or forced) speech is an ancient form of\u00a0tyranny.<\/strong><\/p>\n

One of the most famous examples of opposition to compelled political speech comes from the legend of William Tell,\u00a0<\/a> a Swiss archer who, in the year 1307, refused to salute the hat of Albrecht Gessler, a tyrannical ruler. To punish him, Gessler forced Tell to shoot an apple from his son’s head using his crossbow. Naturally, if he missed, Tell could have killed his own son.\u00a0 Tell showed up with two arrows. The second one. was for Gessler.<\/p>\n

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August Landmesser refuses to salute, 1936.<\/p><\/div>\n

Another interesting example of resistance to compelled speech involves August Landmasser<\/a>, \u00a0a German shipyard worker who refused to take part in the Nazi salute. The photo is from the launching\u00a0 \u00a0of the training ship \u2018Horst Wessel\u2019\u00a0 \u00a0on June 13, 1936 in Hamburg, Germany.<\/p>\n

Opposition to compelled religious speech<\/strong> was a part of the original Enlightenment philosophy of government, as noted in the Virginia Statute for Religious Freedom <\/a>of 1779.<\/p>\n

And, as Thomas Jefferson said in his 1785 book Notes on\u00a0 the state of Virginia: <\/a><\/p>\n

Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advance one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites.<\/strong> <\/span>To support roguery and error all over the earth.<\/em><\/p>\n

Questions about compelled religious speech also involve taxation, and they are still argued today, for instance, in the controversy over taxpayer support for religious\u00a0<\/a>universities.<\/p>\n

Compelled speech in US law\u00a0<\/strong><\/span><\/h4>\n

In the US, compelled speech and related “free exercise of religion” issues have\u00a0 come up many times. One important group of cases\u00a0 have been involved\u00a0 Jehovah’s Witnesses,<\/a>\u00a0 a religious denomination whose leader saw patriotic symbols as “idolatry.”<\/p>\n

In 1940, a school district in Pennsylvania insisted that students begin their day by reciting the Pledge of Allegiance and saluting the US flag.\u00a0 In this case,\u00a0 Minersville School District v. Gobitis<\/a>, <\/strong>the Supreme Court \u00a0upheld the compulsory salute, despite parents’ religious objections, saying that the First Amendment never included any “\u201cexemption from doing what society thinks necessary for the promotion of some great common end.”<\/p>\n

Writing for the majority, Justice Felix Frankfurter said Frankfurter said the question in Gobitis was how to decide the means to reach that great common end, “without which there can ultimately be no liberties, civil or religious.\u201d Should the Supreme Court decide, and thereby become “the school board country?” Or should the decision be left to the individual state legislatures and school districts?\u00a0 Frankfurter said the court should choose the local option, even though some local decisions may turn out to be harsh or foolish.<\/p>\n

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Bellamy salute 1941 was similar to the Nazi “sieg heil” and was a factor in overturning Gobitis. (Wikipedia)<\/p><\/div>\n

In a dissenting opinion, Justice Harlan Fiske Stone said that the Constitution did not indicate how \u201ccompulsory expressions of loyalty play any . . . part in our scheme of government.\u201d Compelling the Gobitas children to publicly violate their \u201creligious conscience\u201d should be declared unconstitutional.<\/p>\n

One popular objection to the Gobitis decision was that in many cases it compelled a “Bellamy salute,<\/a>” which was an arm-extended, palm down salute similar to the one used by the Nazi party in Germany.<\/p>\n

But other issues were also on the table, for example, how to punish the children who refused to salute. Should they be taken away from their parents and sent to a reformatory for their criminal behavior?<\/p>\n

When the state of West Virginia appeared to be specifically targeting Jehovah’s Witnesses, a new federal case was filed along the same lines as Gobitis.\u00a0 In West Virginia State Board of Education v. Barnette<\/strong><\/a> (1943),\u00a0 the court reversed Gobits and said that\u00a0 schools could NOT force students to salute the flag.\u00a0 The\u00a0 court’s 6\u20133 decision,\u00a0 is remembered for its eloquent defense of free speech and constitutional rights. The opinion, written by Justice Robert H. Jackson, said:<\/p>\n

If there is any fixed star in our constitutional constellation, it is that\u00a0no\u00a0official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,<\/strong><\/span> or force citizens to confess by word or act their faith therein.<\/p><\/blockquote>\n

Associated Press and the “Gulf of America”\u00a0\u00a0<\/strong><\/span><\/h4>\n

On Jan. 20, 2025, the new administration of Donald Trump signed Executive Order 14172<\/a>\u00a0directing\u00a0federal agencies<\/a> to adopt the name “Gulf of America” for the body of water that had been called the Gulf of Mexico for at least 300 years. \u00a0Google Maps<\/a>,\u00a0Apple Maps<\/a>,\u00a0Bing Maps<\/a>, and several U.S.-based media outlets such as\u00a0USA Today<\/a><\/i>,\u00a0Axios<\/a><\/i>, and\u00a0Fox News<\/a> have also adopted the change.\u00a0 One organization that did not adopt the change was the Associated Press, which said that since it serves and international audience, it would not be. appropriate to reflect a US-only name change.<\/p>\n

In order to coerce the Associated Press to use the “Gulf of America” name, the Trump administration ordered that AP reporters and photographers be banned<\/a> from all government news conferences and events.\u00a0 The AP sued in federal court but was unable to secure an immediate injunction against the discriminatory and coercive policy.<\/p>\n

Similar FORCED Speech cases\u00a0<\/strong><\/h3>\n

\u00a0In <\/span>Miami Herald v. Tornillo, <\/a><\/strong>1974, a state law forcing a newspaper to run a political candidate’s advertisement was ruled unconstitutional. However, compelled speech in radio and TV programming is permissible, for example in the <\/span>Turner Broadcasting v FCC<\/a> case (1994), in which the courts said that local stations had to be carried by cable companies. \u00a0 This is because broadcasting is directly regulated by the FCC, unlike print or web or most other media in the US. (This comes up again in our study of advertising law<\/a>).\u00a0<\/span><\/p>\n

Loyalty to Israel? In Texas?<\/strong>\u00a0 Most recently,\u00a0the arguments against compelled speech were used to fight\u00a0\u00a0a requirement to sign an oath pledging not to boycott\u00a0 the nation of Israel<\/a> that is (or was)\u00a0 a precondition for employment in the Austin, Texas school system.\u00a0 Some\u00a0 \u00a0have seen this as a “loyalty oath”<\/a>\u00a0 and have been fired, while others\u00a0 \u00a0claim it is a commercial (not a speech) case<\/a>.<\/p>\n

Strict scrutiny:<\/strong>\u00a0 In all of these cases, the Constitutional question is framed through a strict scrutiny<\/a> standard: \u00a0a compelling state interest being achieved with the least restrictive means<\/a> necessary.<\/p>\n

Among other compelled speech cases are: \u00a0 \u00a0<\/strong><\/em><\/p>\n

Sweezy v. New Hampshire <\/strong><\/a>(1957)\u00a0 \u2014 Due process and compelled speech questions rise from a state investigation of a university speaker.\u00a0
\n<\/a><\/p>\n

Keyishian v. Board of Regents<\/strong>, 385 U.S. 589 (1967) \u2014 Court held that states cannot prohibit employees from being members of the Communist Party and that such laws are overly broad and too vague.
\n<\/a><\/p>\n

Wisconsin v. Yoder<\/strong> (1972) \u2013 Court ruled that Amish children were not required by states law to attend school past the 8th<\/sup> grade because their religious freedom guaranteed in the First Amendment superseded that.<\/p>\n

Wooley v. Maynard<\/strong> (1977)\u00a0 \u2014 People who didn\u2019t like the \u201cLive Free or Die\u201d license plate for New Hampshire didnt have to display it, the court said.\u00a0\u00a0 (Minersvill, Barnette, this Wooley case and several other cases are sometimes called the Jehovah\u2019s Witnesses cases because they were brought by people of that denomination).<\/p>\n

\u00a0Turner Broadcasting v FCC<\/a><\/strong>\u00a0(1994). \u00a0The Turner cable company and others objected to FCC “must carry” rules that forced them to include local broadcasting stations in their cable bundle. The courts ruled that under previous decisions (like Red Lion v FCC 1969) a strict scrutiny standard is not applied to federal regulation of broadcasting, and less restrictive standards giving the government more regulatory power can be used. \u00a0\u00a0(This comes up again in our study of broadcasting\u00a0law<\/a>).<\/p>\n

Board of Regents of the University of Wisconsin System v. Southworth<\/strong> (2000) \u2013Court held that public universities may subsidize campus groups by means of a mandatory student activity fee without violating the students\u2019 First Amendment rights.<\/p>\n

Government speech<\/h3>\n

A related area is speech by government,<\/a> which is theoretically speech by all citizens, and thus can be seen as compelled speech. To what extent does government speech have to be content neutral and permissive of all expression?<\/p>\n

Not always and not so much, the courts have said. For instance, in\u00a0Walker v Texas Division, Sons of Confederate Veterans,<\/a> (2015), in which the court said that the state of Texas could refuse to allow Confederate groups to display the confederate flag on a license plate.<\/p>\n

Also in Pleasant Grove City v Summum <\/strong><\/a>(2009),\u00a0 the court said that a city could accept a donation of a religious statue from one private group (with the 10 Commandments) but not another (a fringe religious movement). Here the court said that the city itself had a right of free speech. “Government speech” is a conservative rationale here for allowing religious icons on pubic property. Usually government expression, as such, \u00a0is protected only insofar as it directly relates to a public function of government.<\/p>\n

However, the Ten Commandments <\/a>cases of the late 20th and early 21st century \u00a0have presented problems involving the Establishment Clause of the US Constitution<\/a>, and the general question of the separation of church and state<\/a>.<\/p>\n

What’s wrong with displaying the Ten Commandments? Conservatives would like to see historical reminders of religious obligations as underpinnings of social morality, and indeed, no one argues against prohibitions of\u00a0murder, theft or\u00a0perjury (Commandments 6, 8, and 9).<\/p>\n

Liberals note that\u00a0inconsistencies in the Ten Commandments make it an unsuitable basis for law in a society where equal justice is the foundation. \u00a0For instance, should the government endorse the idea of honoring one’s parents (5th), or \u00a0prohibiting adultery (7th) or even swearing (3rd)? \u00a0Is it wrong for Hindus to worship what Christians would see as idols or “graven images?” \u00a0Even the three major faiths that rely on the Ten Commandments — Islam, Judaism\u00a0and Christianity\u00a0— do not agree on which day of the week to honor (4th) the Sabbath.<\/p>\n

Therefore, to give preference to only one religious code, when many others are also part of the social fabric, presents Constitutional problems.<\/p>\n

Murthy v. Missouri\u00a0 (2024)<\/a><\/strong>was an important case that answered the question: \u00a0Can the federal government attempt to influence private social media companies\u2019 content-moderation decisions? Is that a state action that violates First Amendment rights? The state of Missouri claimed that US Surgeon General Murthy\u2019s attempts to influence social media about \u201canti-vax\u201d\u00a0 rhetoric was a violation.\u00a0 The Supreme Court disagreed.<\/p>\n

Patents and trademarks as government speech\u00a0<\/strong><\/p>\n

Government speech was also an issue in the Redskins football team cases. Under the Lanham Act,\u00a0 trademark registrations could not be \u201cdisparaging, scandalous, contemptuous, or disreputable.\u201d\u00a0 \u00a0The team name “Redskins” was disparaging, courts said.\u00a0 But in a 2017 case Matal v Tam<\/a>, the US Supreme Court overturned the section of the Lanham Act that prohibited disparagement and reversed the underlying legal assuming that any trademark approval was in effect governmental speech. In 2019, a similar case, Iancu v Brunetti<\/a>, allowed trademark registration of a clothing line called \u201cFuct.\u201d\u00a0 \u00a0<\/span><\/p>\n

For more detail see this site under Patent and Trademark issues<\/a>.<\/p>\n

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More Reading<\/h3>\n

Alex Aichinger, “Minersville School District v. Gobitis (1940),<\/a>” MTSU First Amendment Encyclopedia, 2009.<\/p>\n","protected":false},"excerpt":{"rendered":"

  Compelled (or forced) speech is an ancient form of\u00a0tyranny. One of the most famous examples of opposition to compelled political speech comes from the legend of William Tell,\u00a0 a Swiss archer who, in the year 1307, refused to salute … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"full-width-page.php","meta":{"footnotes":""},"class_list":["post-923","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages\/923","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/comments?post=923"}],"version-history":[{"count":6,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages\/923\/revisions"}],"predecessor-version":[{"id":6371,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages\/923\/revisions\/6371"}],"wp:attachment":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/media?parent=923"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}