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Justice Thomas on compelled speech

By Stephen Bates
Special to the First Amendment Center Online

Stephen Bates

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

“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 West 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 discrete.

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 Foods 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 gap.

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. Frederick 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 of 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.


Online symposium: Justice Thomas & the First Amendment

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