This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled speech decisions. It relied on the doctrine to find unconstitutional regulations on credit card surcharges, prescription privacy, collective bargaining, and health notices.
Greater context in judicial reasoning would better balance competing interests and First Amendment values. The compelled speech doctrine should be rethought with an eye to greater contextual clarity. This can be effectively captured through means/ends analysis rather than categorical and often inconsistent judicial veto of federal and state legislation.
Alexander Tsesis, Compelled Speech and Proportionality, 97 IND. L.J. 811 (2022).