Abstract and Keywords
Chapter 2 examines the regulation of “rights speech”—communications about or concerning the recognition, scope, or exercise of constitutional rights. It categorizes and discusses the constitutional implications of different types of rights speech (ideological, informational, and consultative communications) and rights speakers (private, professional, and governmental). The chapter highlights the critical importance of the Free Speech Clause to both healthy and robust constitutional discourse and, in many cases, the effective exercise of constitutional rights. It advocates careful scrutiny, under the Free Speech Clause, of rights speech regulations affecting private and professional communications and offers suggestions for limiting the potential harms of governmental rights speech. The chapter also advocates focusing greater attention on the underlying rights that are affected by rights speech regulations.
AS NOTED IN the Introduction, in important respects freedom of speech is antecedent to the recognition and enjoyment of other constitutional rights. One of the things that defines the Free Speech Clause’s special relationship with non-speech constitutional rights is the protection it affords to communications about or concerning the recognition, scope, and enforcement of constitutional rights.1
“Rights speech,” as I will refer to these communications, takes several different forms.2 Some communications advocate, oppose, or render opinions concerning a constitutional right; others provide basic information about the nature or exercise of a constitutional right (i.e., how, when, or where a right can be exercised); still others are part of a consultative process concerning the exercise or enforcement of a constitutional right. Moreover, a wide range of speakers—private, professional, and governmental—convey information, ideas, and opinions concerning constitutional rights. These categories of speech and speakers form part of the broader discourse about constitutional rights.
Because this discourse connection exists to some degree with respect to all constitutional rights, and because it is so central to the relationships between free speech and non-speech rights, it is deserving of special attention. This chapter focuses on rights speech and the Free Speech Clause’s important relationship to rights discourse, which are concerns that affect all of the rights discussed in later chapters. (p.38) Subsequent chapters will examine the specific relationships between freedom of speech and non-speech rights in greater depth and detail.
Rights speech, and efforts to regulate or restrict it, are important aspects of Rights Dynamism and dynamic constitutional interpretation, concepts discussed in Chapter 1. In the United States, national, state, and local governments routinely regulate, structure, and participate in debates and discussions relating to constitutional rights. When governments restrict or compel communications about or concerning constitutional rights, they initiate a dynamic that implicates both free speech and non-speech rights. Rights speech regulations are frequent and recurring points of contact between free speech and non-speech rights. As we will see, these contacts significantly affect both free speech and non-speech rights.
Rights speech implicates not only rhetorical power concerning a variety of constitutional rights, but in some cases the effective exercise of those rights. Although the nature and value of the different types of rights speech may vary, it is important to provide robust protection for private rights speech in all of its various forms. It is also necessary to constrain some forms of governmental rights speech—particularly communications that may restrict a free and open public discourse about or interfere with the exercise of constitutional rights.
It is imperative that the Free Speech Clause perform its vital function of facilitating an open discourse about constitutional rights. At the same time, the Free Speech Clause cannot do all of the work in terms of protecting rights discourse, preserving constitutional rights, and ensuring their effective exercise. I will argue that the Free Speech Clause does not itself constrain governmental rights speech; for these constraints, we must look elsewhere. More generally, free speech can facilitate the discussion and exercise of non-speech rights, but is obviously not an adequate substitute for substantive non-speech rights. Thus, while we must maintain open channels of rights discourse, we also need to devote greater attention to the substance and enforcement of the contested non-speech rights
Communicating and Regulating Speech about Rights
In the United States, rights speech and rights discourse are prevalent. So is governmental regulation of rights speech. This regulation is a critically important aspect of the dynamic intersection between free speech and non-speech rights. To get a better sense of this intersection point between free speech and non-speech rights, I begin with some preliminary information: Some illustrations of rights speech and governmental regulation of communications concerning rights; a basic typology of categories of rights speech and rights speakers; and a brief explanation of the difference (p.39) between rights speech and what critics of American discourse about rights have referred to as “rights talk.”
Examples and Illustrations
In order to frame the consideration of rights speech, it helps to start with a simple but illustrative example—one that happens not to relate to a constitutional right discussed elsewhere in the book. The City of Norfolk, Virginia, enacted a sign code that imposed, purportedly for aesthetic and safety reasons, size and other requirements for outdoor signs. Such codes are commonplace across the United States. The sign code exempted flags or emblems (including religious ones) and works of art that did not identify or relate to specific products. Central Radio Company, Inc., which happened to be involved in an eminent domain dispute with a city agency, placed a banner on the side of its building protesting the agency’s plan to take its property for public use. The banner depicted the American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and a message highlighting the station’s long relationship with the city and its workers.
The city determined that Central Radio’s sign violated the sign code and issued a citation. Central Radio challenged the sign code on free speech grounds in federal court; a district court ruled in favor of the city, and the U.S. Court of Appeals for the Fourth Circuit affirmed.3 Both courts concluded that the sign code was content-neutral and was justified, under what courts refer to as “intermediate scrutiny,” by important aesthetic and safety concerns.4
Rather than getting caught up in levels or standards of scrutiny, consider instead the type of speech at issue in the case. Central Radio wanted to communicate a protest concerning the government’s disrespect for individual property rights. More specifically, it wished to communicate a point of view about governmental abuse of the Fifth Amendment’s Takings Clause, which allows government to take private property for public uses but requires that “just compensation” be paid to the owner. The Fourth Circuit opinion fails to recognize or characterize the speech in this manner, and defers substantially to the city. However, as a dissenting judge observed, “[i]n a case like this, involving political speech against the heaviest hand of government attempting to seize its citizen’s land,” courts must carefully consider the government’s proffered justifications, their application to the facts at hand, and the possibility that enforcement is a means of suppressing a political protest.5 As the dissenting judge stated: “[i]f a citizen cannot speak out against the king taking her land, I fear we abandon a core principle of our Constitution’s First Amendment.”6
There are a few notable things about this seemingly run-of-the-mill case. First, the speaker was engaged in rights speech, as it was attempting to communicate a (p.40) perspective about or concerning the scope of a constitutional right. Second, the sign ordinance was reviewed under a deferential Free Speech Clause standard, even though it restricted a form of core political speech. Third, even the dissenting judge was not inclined, simply because the case involved rights speech, to invalidate the Norfolk code. However, the judge cited the presence of rights speech as a basis for reviewing the government’s regulation with greater skepticism.
This example can be multiplied many times over. Even in a land that is otherwise teeming with free speech, restrictions on rights speech are a prevalent phenomenon across a wide range of constitutional rights (some of which are discussed in later chapters). Federal, state, and local governments all routinely regulate rights speech. Consider some additional examples, which I will refer to in the constitutional analysis of rights speech below:
• Injunctive and statutory “buffer zones” that restrict speech at or near abortion clinics;7
• State-mandated disclosures requiring that physicians communicate certain factual information about abortion and the development of the fetus, and in some cases to disclose that abortion has negative health effects on the mother or will terminate a human life;8
• Imposition of substantial civil liability for distributing information that compares abortion providers to war criminals and advocates their trial for “crimes against humanity”;9
• Local ordinances restricting residential picketing of an abortion provider’s residence;10
• Laws that authorize public funding of healthcare services on the condition that recipients not advocate or even discuss abortion;11
• Local ordinances requiring that crisis pregnancy centers discuss the availability of abortion as a viable alternative to childbirth;12
• Laws or judicial orders restricting the display of aborted fetuses;13 and
• State programs authorizing the issuance of specialty pro-life, but not pro-choice, license plates.14
The Right to Bear Arms
• State laws banning physicians from asking patients about firearms possession;15
• State laws exempting firearms records from public disclosure;16
(p.41) • Criminal laws barring any reporter, blogger, or other person from publicly identifying an applicant for a gun permit;17
• Punishment of public high school and university students for communicating support for or opposition to gun rights;18
• Denial of official recognition to college groups advocating concealed carry and other gun rights on campus;19
• Laws that prohibit local authorities from using state funds for the purpose of lobbying the state legislature to enact gun control measures;20 and
• Federal budgetary prohibitions on research relating to firearms safety or gun control.21
• Punishment of public school students for communicating pro-LGBT or anti-LGBT viewpoints;22
• State bar rules that treat certain communications opposing transgender equality as a form of prohibited harassment;23
• Application of anti-discrimination laws in ways that require printers, T-shirt makers, and others to convey what they view as support for LGBT equality;24 and
• State prohibitions on talk therapies that are based on the premise that homosexuality is a condition that can be “cured.”25
These examples are illustrative.26 They suffice to preview both what rights speech is, as well as some of the implications associated with restricting or compelling it. Note that I have adopted a definition—any communication about or concerning the recognition, scope, or exercise of constitutional rights—that is purposefully broad. As noted below, there are several different kinds of rights speech and rights speakers. Moreover, the reason for defining rights speech so broadly will become apparent as we examine more closely the implications, for both free speech and non-speech rights, of government efforts to restrict or mandate communications about or concerning constitutional rights.
There are a number of other general things to note about rights speech. First, communications qualify as such, under my definition, even if they are not sophisticated, analytical, or legalistic. The rudimentary building sign in the Norfolk case and t-shirts that display basic messages supporting, or opposing, constitutional rights are examples of rights speech. Rights speakers are not always erudite, and their audiences are not always well-informed. In short, professors and pundits do not have a monopoly on discourse about constitutional rights.
(p.42) Second, rights speech is quite diverse in terms of format. Speakers convey thoughts, ideas, and beliefs about their own or others’ constitutional rights in casual conversations, public meetings, op-eds, blog posts, and public protests. They do so, as noted, by way of signs and symbolic gestures. People communicate about constitutional rights in public parks, on social media, in schools and universities, and in their private associations. They discuss the exercise of constitutional rights not just with friends and acquaintances, but also with lawyers, physicians, social workers, and others who work, as discussed below, at the intersection of professional practice and constitutional rights.
Third, just like other kinds of communications, rights speech can be positive or negative in its tone or perspective. That is, rights speech includes both pro- and anti-rights communications. Like proponents of rights, those who oppose the recognition or expansion of a constitutional right can convey that opposition in a variety of ways.
Fourth, although the primary focus in terms of my analysis of rights speech is on speakers, audiences also have an interest in receiving communications about or concerning constitutional rights. Thus, individuals both create and consume rights speech.
Finally, as some of the examples above suggest, the regulation of rights speech also takes many different forms. Some regulations seek to restrict the communication of ideas or arguments pertaining to rights. Others restrict the communication of basic information about a constitutional right. However, as the examples show, rights speech is also sometimes compelled or mandated by statute, rule, or regulation. When the government mandates that a speaker communicate something about or concerning a constitutional right, it compels rights speech.
Types of Rights Speech
To further sharpen the analysis of rights speech, it is helpful to distinguish among a few different types or categories of communications. Although I will contend that all types of rights speech are worthy of First Amendment protection, categorization will highlight some important distinctions.
In terms of a basic typology, rights speech takes three forms. Some communications, such as the sign in the Norfolk case, express opinions about the recognition or scope of a constitutional right. This is ideological rights speech. Other communications convey basic facts pertaining to a constitutional right, such as when, where, or how a constitutional right can be exercised. This is informational rights speech. Still other communications go beyond basic information and pertain to the strategic, health, and other implications of claiming or exercising a constitutional (p.43) right. We can call these communications, which typically occur in professional settings, consultative rights speech. These categories are not airtight, and there can be some overlap between them. However, they provide a rough typology of the basic forms of rights speech.
The first type, ideological rights speech, is centrally important to our constitutional system of rights. Communications that address the propriety of recognizing a constitutional right, or that convey opinions regarding the scope of a right, or that advocate for particular enforcement of a right, all address matters of undeniable public concern. That said, however, courts do not always recognize these communications as rights speech. As a result, they often fail to subject regulations of ideological rights speech to skeptical Free Speech Clause and other constitutional scrutiny.
Informational rights speech includes basic descriptions of the how, when, and where of exercising constitutional rights. It often consists of factual information relating to such exercises, the availability of resources needed for effective exercise of a right, or records pertaining to exercise of a constitutional right. This kind of rights speech provides basic, but critically important, information about constitutional rights to both individual rights-holders and the public at large.
Finally, consultative rights speech conveys information that may facilitate or, in some cases, frustrate the exercise of a constitutional right. Some informational rights speech might fit into this category—as mentioned, the categories are not meant to strictly compartmentalize. Thus, communications by licensed professionals who advise clients regarding establishing or effectuating a constitutional right, and communications intended to discourage individuals from doing so, are examples of consultative rights speech. Consultative rights speech becomes ideological rights speech when the point of the communication is not to neutrally advise, but rather to actively encourage or discourage exercise of a right.
While these forms of rights speech differ in certain respects, they are all communications about or concerning the recognition, scope, or exercise of a constitutional right. As the above examples show, governments routinely regulate across all three categories.
Types of Rights Speakers
In addition to types of rights speech, there are also different types of rights speakers. Generally speaking, the examples above indicate that there are three different types of rights speakers—private, professional, and governmental.
Private speakers communicate the vast majority of rights speech. They engage in all three types of rights speech, but in particular ideological and informational (p.44) communications. Private speakers are the primary participants in, and the principal beneficiaries of, rights discourse.
As discussed further below, some professionals communicate informational rights speech. They also engage in consultations relating to the exercise of constitutional rights. Lawyers, physicians, counselors, and other licensed professionals play important roles in terms of educating clients and patients about rights and assisting them with effectuating those rights.
Finally, governments routinely convey rights speech and participate in rights discourse. We normally think of governments as regulators of private and other communications. In many of the examples above, that is indeed the role of governments and officials—regulating speech about or concerning constitutional rights. However, governments also communicate their own viewpoints and ideas about constitutional rights. They may do this directly, for example by publicly conveying pro-equality, pro-Second Amendment, or antiabortion viewpoints. They may also influence rights speech by limiting public funding to private individuals and groups. Funds may be made available only to speakers who share the government’s viewpoints about a constitutional right.
Consider a few prominent examples. De jure racial segregation and so-called “no promo homo” laws, both of which are discussed in Chapter 5, expressed viewpoints that stigmatized African-Americans and banned the “promotion” of homosexuality, respectively. These laws expressed official viewpoints or perspectives regarding race and LGBT equality. As speakers, governments can also convey messages of disapproval with regard to messages they consider to be discriminatory. For instance, in a recent decision, the Supreme Court allowed the State of Texas to deny an application for a specialty license place featuring an image of the Confederate flag—on the ground that the state, as a speaker rather than regulator of private speech, was entitled to disapprove of racist or other offensive speech.27
Just like all three types of rights speech, all three types of rights speakers are important to a well-functioning constitutional rights discourse. But in terms of the Free Speech Clause and the enforcement of non-speech rights, as discussed below the participation of each raises distinctive issues and concerns.
Rights Speech versus “Rights Talk”
Now that we have a basic sense of what rights speech is, and who conveys it, it is necessary to draw one final distinction—between rights speech and “rights talk.” Some commentators have criticized Americans’ seeming obsession with constitutional rights—in particular, the manner in which people discuss and debate constitutional (p.45) rights. Critics of “rights talk” argue that American rhetoric about rights is harmful to the nation’s legal, political, and social fabrics.28 In particular, they worry that rights talk, which they contend is often absolutist and relentlessly individualistic, ignores limits on rights claims and the need to balance individual rights and collective responsibilities.
Rights speech and rights talk share some common ground. Both concepts are concerned with public discourse about constitutional rights. Further, both are premised on the notion that it is normatively desirable to engage in discussions about constitutional rights. Finally, rights speech proponents and rights talk critics would agree that Americans talk—a lot—about their constitutional rights.
Despite these commonalities, rights speech is distinct from rights talk. Critics of rights talk take issue with how constitutional rights are discussed, not whether they ought to be discussed in the first place, or to what extent rights discourse can or should be regulated by government. The primary concern with regard to rights speech is the extent to which citizens are in fact free to debate, discuss, learn about, and exercise constitutional rights, as part of a democratic process that focuses on constraining government. In this sense, rights speech is a valuable feature of American democracy, not a bug.
Rights speech is not a form of political or social dysfunction. Rather, it is a central aspect of citizens’ self-governance. Its primary concerns are whether and to what extent government ought to be constrained in the context of conversations about limits on its own powers; the manner in which constitutional rights, as powers or trumps, can or should be exercised; and the extent to which governments are permitted to intervene and communicate their own thoughts regarding constitutional rights.
How speakers choose to engage in rights speech—the content they communicate, or the specific mode of communication—relates to the tone and character of American political and constitutional discourse. Rights talk critics raise legitimate concerns about such matters. However, these are social and political problems that government cannot remedy through laws limiting speech.
Rights Speech, Free Speech, and Non-speech Rights
When governments regulate rights speech, both freedom of speech and the non-speech rights that are the subjects of discourse may be adversely affected. In order to assess these effects, we need to understand the general roles or functions the Free Speech Clause performs with regard to rights speech. We must also look in the other (p.46) direction, toward the implicated non-speech rights and how they might be affected by restrictions on or mandates concerning rights speech.
Free Speech Concerns
Rights speech is critically important to the recognition and facilitation of constitutional rights. A robust rights discourse serves all of the Free Speech Clause’s principal values—self-government, the search for truth, and individual autonomy. Interference with rights speech, through various forms of regulation or compulsion, undermines these critical free speech functions and values.
One of the central functions of the Free Speech Clause as it relates to other rights is to protect a robust public rights discourse. As Akhil Amar has observed, “[t]he Constitution itself came to life in a land teeming with free speech.”29 Its provisions, including those in the Bill of Rights, are the product of a broad and robust constitutional discourse. Subsequent generations have appreciated the critical importance of free speech, particularly in terms of facilitating and supporting the recognition and exercise of other constitutional rights.
Thus, for example, Reconstruction Republicans resisted limits on freedom of speech and freedom of press precisely because they feared that governments would interfere with the recognition and exercise of equal protection rights.30 Much later, race, LGBT, and other equality advocates relied on free speech rights to communicate and facilitate their constitutional claims. So too did proponents of other rights, including abortion, free exercise of religion, and the right to keep and bear arms. In a general sense, social and political movements all rely on the ability to communicate with the public in terms that invoke or rely upon constitutional rights.31
As discussed in the book’s Introduction, the Free Speech Clause provides a general mediating framework in which this constitutional rights discourse occurs. Among other things, that framework demands that governments grant equal access to public fora for all speakers, prohibits censorship and suppression of speech based on its content, and generally facilitates debate on public issues that is “uninhibited, robust, and wide-open.”32 Through this framework, the Free Speech Clause has mediated public and political discourse about a wide variety of non-speech rights. It has done so, in part, by ensuring that proponents of abortion, equal protection, free exercise of religion, the right to keep and bear arms, and other constitutional rights have ample opportunities to communicate with regard to the status, scope, and exercise of these rights.33
Free Speech Clause protection for rights speech assists not just proponents of new rights or defenders of expansive interpretations of existing rights, but also those who resist these things or even assert conflicting rights of their own. Through (p.47) freedom of speech and other expressive rights, defenders of the status quo regarding constitutional rights are empowered to resist recognition of new rights or expansion of existing non-speech rights. In other words, free speech rights enable not just offensive but also defensive forms of rights speech. By prohibiting governments from imposing an orthodoxy with regard to constitutional rights, the Free Speech Clause facilitates a full and fair discussion of these rights. In constitutional rights discourse, free speech rules and principles prevent government from silencing or compelling rights speech.
For example, the Free Speech Clause protects robust anti-equality speech—including even derogatory and hateful statements about racial, ethnic, and other groups. As discussed in Chapter 5, critics charge that protection for this form of rights speech diminishes or prevents members of minority groups from enjoying equal protection under law. However, protection for the broadest range of rights speech facilitates an open and transparent consideration of all perspectives concerning equal protection rights and principles.
As noted, free speech rights protect the right to dissent with regard to the recognition or expansion of non-speech rights. Thus, as the Supreme Court held in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston(1995),34 the government could not force Irish-American parade organizers to include in their event a group that advocated for equal recognition and respect for gay and lesbian Irish-Americans. Similarly, in Boy Scouts of America v. Dale (2000), the Court held that the First Amendment barred government from forcing the Boy Scouts to accept an openly gay member whose presence was inconsistent with their own stated mission.35 These decisions protect individuals and groups from state imposition of a form of anti-discrimination orthodoxy.
In more general terms, the Free Speech Clause supports and sustains democratic processes that lead to constitutional change. This includes the recognition of new constitutional rights, as well as new interpretations of existing constitutional rights.36 The right to abortion recognized in Roe v. Wade (1973) is an example. Similarly, as discussed in Chapter 5, the race and LGBT equality movements engaged in extensive litigation campaigns challenging restrictions on public protests and the distribution of literature advocating for equal protection rights. Groups used the Free Speech Clause’s mediating protections to advance their equal protection claims and agendas.
In Obergefell v. Hodges (2015), the Supreme Court’s decision recognizing a right to marriage equality for gay and lesbian couples, the Court highlighted the importance of rights speech and rights discourse to the recognition of this right. The majority discussed the various ways in which the public and public officials had opportunities to discuss, study, debate, and litigate marriage equality prior to its decision. Justice (p.48) Anthony Kennedy described how “new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”37
The Free Speech Clause also performs an important function in terms of ensuring the free flow of information—including factual information—that informs individual decision-making about rights. This facilitates individual decision-making about whether and how to pursue or exercise constitutional rights. Further, the Free Speech Clause protects individual efforts to seek out and obtain knowledge concerning constitutional rights. In this and other respects, each of the non-speech rights examined in the book depends for its full and effective enjoyment on the recognition and enforcement of free speech rights.
In light of all of these critical free speech functions relating to non-speech rights, regulation of rights speech poses a serious danger to our constitutional system of rights. Pervasive regulation of communications about or concerning constitutional rights allows governments to manage and structure discourse about those rights, again in ways that implicate both free speech and non-speech rights. Rights speech regulation may alter the nature and substance of debates about constitutional rights. It may also erect barriers to exercising those rights.
For example, as discussed below and in Chapter 6, abortion rights discourse has changed markedly over the years. Part of the change is owing to government’s increased participation in that discourse, which has been sanctioned by Supreme Court decisions concerning the right to abortion.38 In short, the Court has invited government to weigh in on the abortion right, through mandatory disclosure laws and other means. Some of these governmental interventions have altered the Free Speech Clause’s mediating function, which is supposed to ensure the free and unfettered flow of information about constitutional rights. Mandatory disclosure of ideological communications about abortion rights threaten not just free speech, but also the right of abortion itself.
Some of the examples of rights speech highlighted earlier are readily identified as political speech, which is of course a core concern of the Free Speech Clause. Thus, communications about or concerning the merits of a constitutional right constitute speech on an obvious matter of public concern. They facilitate citizen self-governance by allowing speakers to communicate about the proper limits on governmental power.39 The Free Speech Clause protects a vital collective interest in allowing the people to decide on the appropriate distribution of power.
As Robert Post has observed, “the First Amendment safeguards public discourse not merely because it informs government decision-making, but also because it enables a culturally heterogeneous society to forge a common democratic will.”40 (p.49) Rights speech regulations interfere with the formation of this democratic will by suppressing, dictating, altering, or manipulating speech that addresses constitutional rights. This can occur in a variety of ways—through direct regulation, limits on access to public properties, conditions on funding, restrictions on the distribution of information, and other means.
In addition to their negative implications in terms of self-governance, rights speech regulations can also interfere with the exchange of ideas and the search for truth with regard to constitutional limits on government.41 Abortion image bans, restrictions on public access to gun permitting information, and conditional spending measures that restrict abortion speech or arms speech all prevent speakers and audiences from exchanging and accessing information that is critical to thinking about and debating constitutional rights.
Further, with regard to the truth-seeking function, rights speech regulations that compel speech about or concerning constitutional rights raise additional concerns. As noted, some compulsory abortion disclosures distort conversations between physicians and patients regarding the exercise of the right to abortion.42 This concern also arises in cases where government seeks to compel pregnancy centers opposed to abortion to suggest to their patients that contraception and abortion are “viable options.” These measures may also compel speakers to convey rights speech with which they do not agree.
Rights speech regulations can also interfere with the free speech autonomy of both speakers and audiences. Laws that restrict speakers’ ability to choose their method of communication, ban physicians from asking patients about firearms ownership, or mandate that physicians disclose ideological information about abortion, implicate speakers’ autonomy interests. These restrictions and mandates also implicate audiences’ interests in receiving information about constitutional rights.43 Some, such as mandatory abortion scripts, may use emotive appeals to manipulate target audiences.44 This sort of structuring of rights discourse negatively affects interests in self-fulfillment and decisional autonomy.
Finally, as the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of available information from which members of the public may draw.”45 Many rights speech regulations, including restrictions on research, advocacy, and the distribution of information about the exercise of rights, limit what speakers, journalists, and the public can learn about this important aspect of constitutional rights. Information concerning how, when, and where rights are exercised is part of constitutional rights discourse.
In sum, rights speech regulations interfere with the central mediating functions of the Free Speech Clause. They also implicate, and often offend, central Free Speech (p.50) Clause self-government, search for truth, and individual autonomy justifications. As I explain below, this does not mean that all such regulations violate the Free Speech Clause. However, thinking about them in terms of rights speech and rights discourse offers a different perspective regarding what might at first glance appear to be ordinary public order, public safety, or public records laws. The regulation of rights speech and rights discourse can be camouflaged in such measures.
As indicated, the constitutional concerns relating to governmental regulation of rights speech extend beyond the Free Speech Clause. As at other intersection points between freedom of speech and non-speech rights, the effects here run in more than one direction. Regulating speech about or concerning constitutional rights does not just affect free speech rights: it also affects the recognition, status, and exercise of non-speech rights.
If governments can control the dissemination of factual information concerning equal protection, abortion, arms, and other rights, or otherwise influence discussions about those rights, they may also be able to affect the recognition, scope, and enjoyment of non-speech rights. Thus, in a very fundamental sense, the fate of non-speech rights is directly connected to the free flow and distribution of rights speech.
Pre-recognition limits on rights speech can result in proposed new rights being defeated at inception. As discussed, restrictions on post-recognition rights speech affect the ability to communicate and receive information and arguments about rights and to engage in a robust debate concerning their merits. These speech activities are critical to the granting or withholding of public support for constitutional rights. Thus, had authorities been successful in suppressing abolitionist, gay equality, pro-abortion, or pro-Second Amendment communications, the rights associated with this speech may not exist at all, or may have taken forms that we would not recognize today.
Restrictions on rights speech deprive advocates and claimants of the rhetorical power of rights. Such restrictions may also forestall or prevent reconsideration by the people, their elected representatives, and courts of decisions to grant formal recognition to a constitutional right or to expand its scope. For example, restrictions on public antiabortion speech—buffer zones, residential protest restrictions, imagery bans, and the like—impact not just free speech but also, potentially, the substance and scope of the abortion right.
Restrictions on the ability to communicate freely and openly about constitutional rights can also negatively affect their actual exercise. As discussed above, some rights speech communicates ideas and opinions about constitutional rights. Suppression (p.51) of that kind of communication may impede the recognition and exercise of rights. For example, by suppressing communications about race equality, state and local restrictions on public protests during the civil rights era impeded the recognition and exercise of equal protection rights. Similarly, suppression of speech and expressive association by LGBT persons has impeded their achievement and enjoyment of equal protection under law.
Some rights speech conveys information about the consequences of exercising a constitutional right. Certain mandatory abortion disclosures ostensibly serve this purpose.46 However, these mandates can also interfere with women’s autonomy regarding the decision whether to exercise the abortion right. The Due Process Clause bars governments from coercing women not to exercise that right. But it says nothing about interference short of actual official coercion, which can also negatively impact the free exercise of the abortion right.47 Mandating abortion speech through physician intermediaries can interfere with women’s right to choose by requiring the disclosure of inaccurate, misleading, or even ideological information about abortion. Allowing or inviting the government to persuade or convince women that abortion is physically and psychologically harmful to them or another “person” may provide an effective means of restricting access to or exercise of the abortion right. Note that the same concern would arise if governments required licensed firearms dealers to convey inaccurate, misleading, or ideological information to potential purchasers of firearms. In sum, rights speech regulations are doubly dangerous—they threaten to restrict, compel, or structure communications that affect the actual exercise and enjoyment of constitutional rights.
Separate and apart from concerns about their effects on the actual exercise of constitutional rights, rights speech regulations also distort the democratic processes by which constitutional rights attain their social, political, and constitutional statuses. Maintaining open and robust discourse about constitutional rights allows citizens to decide for themselves whether to recognize a constitutional right, how much support the right merits, and how to balance a particular right’s societal benefits and costs.48 The feedback—both negative and positive—that rights speech produces can also be critically important in terms of signaling support or opposition to representatives, judges, and other officials involved with interpreting and enforcing rights.
Rights speech regulations can create a kind of de facto hierarchy of constitutional rights. Consider the very distinct ways in which legislatures have recently treated the right to abortion and the right to keep and bear arms. Officials in many states have generally treated abortion as a disfavored right, subject to an increasing array of restrictions—including mandatory disclosures and spending limits on advocacy and counseling. In contrast, state legislatures have enacted a host of measures designed (p.52) to protect and facilitate the right to bear arms—including measures that deprive the public of information about firearms ownership and restrict the expenditure of public funds that might support research or advocacy relating to gun control.
Governments ought not to be permitted to impose an artificial ranking of constitutional rights through manipulation of speech about those rights. This is the prerogative of individuals, groups, and communities, who rely upon open channels of communication in order to determine which rights are to be recognized and to what degree. If there is to be a hierarchy of constitutional rights, it ought to be the product of a democratic process that is free from governmental manipulation of and interference with private speech about or concerning constitutional rights.
Private, Professional, and Governmental Rights Speech
Thus far, the chapter has expressed several general concerns regarding regulation of rights speech. It turns now to more specific free speech and non-speech concerns raised by the several examples highlighted earlier. As noted, there are three basic types of rights speech (ideological, informational, and consultative) and three categories of rights speakers (private, professional, and governmental). The discussion that follows uses the latter categorization of rights speakers to identify and analyze specific rights speech concerns.
Private Rights Speech
As the earlier discussion showed, private speakers communicate rights speech in a variety of different ways. Communications about or concerning constitutional rights are also more pervasively regulated than generally appreciated. Not all regulations and restrictions on rights speech are unconstitutional under current Free Speech Clause doctrines. Indeed, many would likely satisfy these standards, with courts rarely even acknowledging their connection to rights discourse.
That, indeed, is precisely the problem. As the example involving the Norfolk sign code shows, courts are not sensitive to the full range of constitutional implications associated with laws that restrict rights speech. Greater sensitivity in this regard could lead to the invalidation of certain measures. But more generally, it would facilitate appropriate judicial scrutiny of official acts that regulate a form of political speech.
My purpose is not to evaluate specific restrictions based on current free speech doctrines, but rather to offer more general suggestions regarding how courts and (p.53) public officials might recognize and evaluate private rights speech regulations. As the Norfolk example shows, too often judges and officials adopt a narrow perspective when reviewing rights speech regulations. Applying current free speech doctrine, judges focus on the content neutrality of regulations, rather than on the broader impact these measures can have on rights speech and rights discourse. Thus, they do not recognize the implications, for both free speech and non-speech rights, of laws and regulations that limit various forms of rights speech.
This recognition is important not because it necessarily transforms the restriction into a presumptively unconstitutional regulation of political speech, but rather because it justifies a more searching review of the free speech and non-speech implications of the regulation. Greater judicial skepticism regarding rights speech regulations can make a significant difference, both in how these measures are reviewed and in the outcomes of specific cases.
On their face, many rights speech regulations are similar to the Norfolk sign code—they appear to regulate neutrally, impact speech minimally (if at all), or operate as reasonable limits on private speech. However, as regulations of a wider and deeper constitutional conversation about rights, each such regulation allows government to alter and skew discourse about constitutional rights. Absent this recognition, free speech doctrines may appear to mediate neutrally and without any particular political or other bias. With it, however, judges can counteract doctrinal nearsightedness with regard to seemingly “ordinary” sign codes, spending conditions, restrictions on student speech, and other measures.
Recognizing the ideological and political nature of rights speech can help judges and legislatures appropriately mediate public discourse concerning constitutional rights. For example, in McCullen v. Coakley (2014), the Supreme Court invalidated a Massachusetts law that prohibited communication within thirty-five feet of any abortion clinic. Although the Court concluded that the law was not based on the content of speech, it nevertheless struck it down. The Court’s recognition that the plaintiffs, who were sidewalk counselors, wished to exchange information and ideas about abortion—to engage in an intimate form of rights speech—plainly influenced the outcome of the case.49
McCullen’s recognition of the importance of rights speech ought to extend more broadly to abortion protesters, who also engage in rights speech (although of a more boisterous and sometimes disruptive form). As McCullen suggests, judicial recognition that buffer zones, bubbles, and other restrictions on private abortion speech regulate constitutional discourse—sometimes, though not always, based on its content—would likely impact how courts review such measures.
This perspective could also affect the way courts review other regulations that affect rights speech. Some courts have upheld limits on the public display of abortion (p.54) images. However, the physical, moral, and other consequences of exercising a constitutional right are an important part of discourse about that right. In that respect, abortion image bans are a particularly troubling restriction on rights speech; they are and ought to be treated as invalid content-based restrictions on political speech.
The abortion context is not the only one in which officials have suppressed ideological and informational rights speech. Thus, as noted earlier, administrators in public schools and on college campuses have treated some abortion speech, equality speech, and arms speech as inherently disruptive or inappropriate. But younger audiences should actually be encouraged to engage in this discourse. So long as students do so in a non-disruptive manner and the subject matter is not beyond their understanding or level of maturity, they ought to be allowed and even encouraged to participate in constitutional discourse.
Governments sometimes also use their authority to manage public resources, including taxpayer funds, in ways that restrict or compel communications about or concerning constitutional rights. Yet, again, courts rarely recognize these measures as implicating rights speech. As McCullen suggests, access to public properties such as streets and sidewalks is critically important to constitutional discourse. So too is access to municipal transit systems and other public spaces. In that respect, regulations banning all “political” speech from such places, which have become common, ought to be reviewed carefully. As cases suggest, these restrictions can disparately affect controversial rights speech about arms, abortion, equality, and other rights.50 Although governments have broad authority to restrict access to these properties and to preserve them for their intended purposes, courts ought to ensure that such measures have not been adopted for the purpose of excluding specific kinds of private rights speech, and that they are otherwise reasonable regulations of speech in public venues.
Similarly, courts should also be skeptical of spending conditions that restrict or compel rights speech. Using the spending authority to suppress or dictate rights speech raises the same basic problems as does using other means of governmental power. Funding conditions relating to abortion, the right to bear arms, equality, and other constitutional rights should be reviewed carefully to ensure that governments are not improperly suppressing or dictating particular viewpoints about rights.51
Finally, courts and officials should take a more skeptical approach to measures that have the effect of concealing or suppressing information concerning the exercise of constitutional rights. Although intimate privacy rights must be preserved, basic information about the exercise of abortion, the right to bear arms, and other constitutional rights ought not to be hidden from the public. As already mentioned, bans on the display of abortion imagery suppress (p.55) information relevant to the effects of exercising the abortion right. By the same token, free speech considerations ought at least to color consideration of laws that suppress empirical information about the exercise of Second Amendment rights, or restrict the use of public funds to discuss the right to bear arms or other rights with officials.
Protection of private rights speech furthers all of the principal values of the Free Speech Clause. It also helps to ensure that individuals have the broadest form of protection for non-speech rights, which depend for their effective exercise on freedom of communication, access to public venues, and the sharing of critical information about rights.
Professional Rights Speech
Firearms inquiry bans, mandatory abortion disclosures, bans on “reparative” therapies, and some of the other measures identified earlier regulate communications by licensed professionals. The state sometimes relies on its power to license professionals to justify measures restricting or compelling rights speech.52 The extent to which governments can limit professional speech is not clear. I will not try to answer that question definitively or analyze the status of professional speech generally under the Free Speech Clause. Rather, the discussion that follows will focus more specifically on the connection between a particular sub-category of professional speech—namely, professional speech about or concerning constitutional rights. In general, this speech occurs during the course of consultations and counseling relating to the exercise of constitutional rights. Some consultative rights speech conveys basic information about rights. Other communications are more ideological or normative. Whatever form they take, I will contend that they too are part of constitutional rights discourse and as such are entitled to coverage and a degree of protection under the Free Speech Clause.
Despite its different context and character, like private rights speech, professional rights speech is generally deserving of strong Free Speech Clause protections. This is owing not only to its connection to free speech values, but also to its relationship to the effective exercise of non-speech rights.
Professional Speech and the Free Speech Clause
Although I will not venture a position on the general constitutional status of professional speech, it is necessary to situate professional speech relative to the free speech guarantee. Much of what professionals do occurs through and as a result of various forms of communication or “speech.” Lawyers advise clients and file briefs, doctors (p.56) perform consultations and write prescriptions, and other professionals communicate with their clients in various ways.
Nevertheless, the Free Speech Clause does not broadly preclude or restrict the regulation of licensed professionals. Thus, governments are permitted to impose basic requirements relating to professional status, and to broadly regulate professional activity—including expressive activity. For example, a state requirement that lawyers or physicians be licensed to practice their professions does not implicate the Free Speech Clause.
Nor does the Free Speech Clause preclude governments from enforcing generally applicable standards of conduct or care. Thus, governments can ban the prescription of certain medications, impose civil liability and professional discipline for legal or other professional advice that causes damages, and protect clients from harmful practices. Governments can also enforce rules of evidence and procedure, impose sanctions for the filing of frivolous lawsuits, and prohibit professionals from revealing client confidences. Many, if not all, of these regulations limit communication or speech in some fashion—oral advice, written prescriptions, etc. Nevertheless, few would argue that they raise serious Free Speech Clause concerns.
Despite their broad licensing and regulatory authority, governments do not have unlimited power to regulate professional communications. The Supreme Court has been cryptic about the speech rights of professionals and their clients. In a concurring opinion that has turned out (in the absence of other guidance) to be influential, Justice Byron White suggested a distinction between public and private professional speech.53 Under this approach, a licensed physician who gives a public speech concerning abortion or Second Amendment rights is acting as a private citizen and is protected by the Free Speech Clause. However, the same physician who provides advice about abortion or asks about firearms ownership in the context of an in-office professional consultation does not enjoy the same free speech protection—indeed, some courts have held that she enjoys no free speech protection at all.54
In the office consultation context, the Supreme Court has indicated that the Free Speech Clause is “implicated,” but has not clarified to what degree.55 This has left lower courts without adequate guidance with regard to a broad range of professional speech. Some lower courts have interpreted the Court’s sparse comments regarding professional speech to mean that professional advice is a form of professional conduct not covered by the Free Speech Clause at all. Others have concluded that professional communications delivered in the office setting are entitled to some, although not to full, free speech protection. As a sign of the confusion, the Eleventh Circuit Court of Appeals considered Florida’s ban on physician inquiries regarding firearms four separate times—three times by the same panel of judges and once (p.57) before the entire court of appeals—and in doing so applied three different standards of review to the law.
The extent to which government may rely on its licensing power to regulate professional speech is a subject of great interest, but one subject to little concrete authority. However, whatever the scope of the government’s power to regulate professional communications may be, I will argue its authority is subject to special constraints insofar as it restricts or compels professional speech about or concerning the recognition, scope, or exercise of a constitutional right.
Licensed Professionals and Constitutional Rights
Many might assume that professionals have little, if anything, to do with constitutional rights. After all, most of us see a lawyer or doctor to solve a specific problem, or to address a particular condition. But far more frequently than is generally acknowledged, professional-client consultations address or relate to the subject of constitutional rights.
This is easiest to appreciate with regard to communications between lawyers and their clients. As Kathleen Sullivan has observed, lawyers are frequently “vindicators of constitutional rights against the state.”56 Through their advice and other communications, lawyers seek to check governmental power and protect the constitutional rights of their clients. Supreme Court precedents have acknowledged the importance of lawyers’ solicitation of clients with potential constitutional claims, the expressive nature of constitutional litigation, and the free speech rights of lawyers to publicly defend their clients’ interests.57
Lawyers are natural state adversaries, and as such are frequently involved in consultations about constitutional and other rights. However, a number of other professionals perform important functions relating to their clients’ constitutional rights.
For instance, physicians have long clashed with the state over the provision of medical advice to their patients regarding such things as reproductive products and services. Indeed, as discussed in Chapter 6, dissenting opinions in early Supreme Court cases regarding whether the Due Process Clause protected a constitutional right to access information about contraception were among the first to raise so-called “professional speech” concerns. In those cases, medical professionals challenged legal restrictions on the dissemination of truthful information regarding contraceptive devices and methods. The mandatory abortion disclosure laws described earlier regulate communications about or concerning abortion. Physicians have also been on the front lines in challenges to state laws prohibiting withdrawal of life-sustaining treatment and physician-assisted suicide—both of which implicate (p.58) the so-called “right to die.” These interactions implicate constitutional rights pertaining to end-of-life decision-making.
Other licensed professionals communicate and consult with clients in ways that impact or concern constitutional rights. Marriage counselors, family counselors, social workers, nurses, teachers, mental health counselors, and child care providers can all find themselves aligned against state licensing or other authorities on matters relating to constitutional rights. Even firearms dealers, who do not enter the same type of licensing relationship as lawyers and other professionals, could be subject to speech restrictions pertaining to Second Amendment rights.
These professionals serve a number of important functions with regard to constitutional rights. By providing factual and other information, they educate patients and clients about subjects relating to constitutional rights and facilitate their exercise. Professionals also participate in, and contribute to, the free flow of accurate information about contraception, abortion, equality, arms, and end-of-life decision-making. Thus, restrictions on professional rights speech affect more than the provision of professional advice concerning a client’s personal legal, medical, or other concerns. Like private rights speech regulations, they impact discussions and personal decisions regarding the exercise of fundamental constitutional rights.
Professional Rights Speech as Free Speech
The question, however, is whether laws and regulations that restrict or mandate communications between professionals and clients about or concerning the subject of constitutional rights ought to be treated as suspect under the Free Speech Clause. Notwithstanding the fact that the speaker is a licensed professional and the audience is a client or patient, the Free Speech Clause ought to fully apply to regulations of professional rights speech. These regulations target, quite often based on content, communications that address the mechanics, propriety, and consequences of exercising a constitutional right. Like private rights speech regulations, professional rights speech regulations ought to be subject to meaningful Free Speech Clause review.
Despite the important constitutional functions performed by many licensed professionals, under the approaches adopted by Justice White and some lower courts, legislatures currently have very broad authority to restrict or structure professional rights speech. In addition to the mandatory abortion disclosure laws and bans on firearms inquiries discussed earlier, consider these examples:
• A law prohibiting licensed marriage counselors from advising their clients not to enter into interracial marriages;
• A law barring physicians from discussing the availability of abortion, or the positive effects of procuring an abortion, with their patients;
• A law compelling physicians to inform their patients that certain pharmaceutical abortion procedures can be “reversed”;
• A law requiring physicians to discuss the positive attributes of certain types of contraceptives, and to urge their patients to use them;
• A law prohibiting physicians from expressing the view that marijuana use is medically beneficial for some patients, and thus ought to be protected under state and federal law;
• A law barring lawyers from discussing the safety and legal implications of firearms possession with their clients;
• A law barring physicians from discussing end-of-life plans with their patients; and
• A law compelling physicians to present specific information to patients for the purpose of persuading them not to refuse life-sustaining nutrition and hydration (a right the Supreme Court has assumed competent adults possess).
If courts were to adopt the approach that professional advice communicated in private settings, or as part of a course of treatment, is either not covered by the Free Speech Clause because it is conduct or is entitled to something less than full protection, legislatures would presumably be free to enact all of these laws. This would be so despite the obvious fact that each of them regulates a communication between professional and client on the basis of its subject matter or viewpoint—a practice generally forbidden by the Free Speech Clause.
Moreover, the laws would be deemed valid—indeed, according to some courts would not be subject to review under the Free Speech Clause—despite the fact that each restricts or structures a conversation about or concerning a constitutional right. Note that the state could not only prohibit, but also compel, statements about constitutional rights, including equality, abortion, and the right to bear arms. For example, legislatures could require counselors to extol the virtues of interracial marriage, or require physicians to disseminate information that is intended to persuade women to obtain abortions. Under the broadest reading of the Supreme Court’s incomplete doctrine of professional speech, these laws would at least stand a reasonable chance of surviving First Amendment challenges.
Some of the foregoing examples may seem a bit far-fetched. Then again, not long ago most might have said the same thing about a state law that imposed restrictions (p.60) on the circumstances in which physicians can discuss firearms possession with their patients. Governments have turned with increased frequency to regulations of professional rights speech. Courts have thus far failed to treat these regulations as related to, much less harmful for, constitutional rights discourse.
As in other contexts, there is the concern that the Free Speech Clause not be used as a substitute for more fitting or appropriate non-speech claims. From that perspective, some might view Free Speech Clause challenges to professional speech regulations as ill-fitting or even “opportunistic” substitutes for economic liberty claims.58
That argument might carry some force as it concerns free speech challenges to measures such as professional entry barriers or pricing regulations. These would indeed seem to be due process challenges dressed up in free speech garb. In contrast, compulsory abortion disclosures, firearms inquiry bans, and the other examples listed above do not target any economic dimension of professional licensure. Rather, the laws aim squarely at the provision of critical information about rights, conversations between professional and client concerning rights, and therapies that may implicate rights.
The appropriate question in these contexts is not why free speech claims are appropriate, but why the fact of licensure permits government to compel and ban speech relating to constitutional rights. If anything, it would seem that it is the states and regulators that are acting opportunistically—to restrict or mandate political speech.
The regulation of professional equality speech, abortion speech, and arms speech affects vital communications concerning constitutional rights and may also affect the effective exercise of those rights. Consider the character and content of some mandatory abortion disclosures. South Dakota requires that abortion providers tell patients that abortion will “terminate the life of a whole, separate, unique, living human being” and that “the pregnant woman has an existing relationship with that unborn human being.”59 The doctor must also explain “all known medical risks” of abortion, including the “increased risk of suicide ideation and suicide.”60 Federal courts have upheld both the “human being” and suicide advisory scripts.61 Other state measures, which are sometimes referred to as “speech and display” laws, require that an ultrasound be displayed to the woman and that doctors provide a detailed description of the image (including information about limbs, vital organs, position in the uterus, etc.).62 Women can sometimes refuse to view the sonogram itself, but they must generally be informed of the sonogram results and must sign an informed consent certifying that they have received the information.
As some scholars have suggested, these and other mandatory abortion disclosure laws raise very serious free speech concerns.63 Yet the Supreme Court and lower courts have tended to treat them as merely an aspect of informed consent. The Supreme Court and other courts ought to treat governmental efforts to structure (p.61) abortion communications and discourse in this context and in these ways more skeptically.
Recognizing rights speech in these mandated communications could convince courts to reconsider the license that has been granted to governments to compel abortion speech and structure abortion discourse. It might also encourage localities to find ways other than compelling abortion speech to regulate pregnancy centers that may fail to provide full disclosure of their services to patients. Regardless of the perspective or message the government is pressing, mandating speech about or concerning abortion is dangerous to both free speech and abortion rights.
Some have expressed the concern that treating abortion disclosures and similar measures as implicating political speech might actually harm women’s access to abortion. The concern is that this perspective might encourage courts to treat the abortion procedure itself as a political act rather than an aspect of women’s health care.64 But the fact is that mandatory abortion disclosures regulate the provision of factual and other information on a matter of considerable public concern. Of course, abortion consultations are primarily about receiving proper medical care. However, unlike other medical procedures, abortion services have a constitutional dimension. Thus, mandatory abortion disclosures implicate medical care, freedom of speech, and abortion rights.
Of course, states may legitimately compel professionals to disclose the risks of medical procedures and other treatments—including abortion. They may do so even if the purpose is to dissuade patients or clients from taking risks the state deems to be unreasonable. However, laws requiring that professionals disclose information for the purpose of persuading a patient not to exercise the abortion right, or banning communications about firearms because they might cause a patient to question the propriety of exercising Second Amendment rights, are fundamentally different. They target speech relating to constitutional rights, raising the specter that the state is using its licensure power not to control risks but to regulate discourse about rights. In short, when governments mandate or restrict professional communications about or concerning a subject relating to a constitutional right, they are not just regulating the dissemination of things such as clinical advice and medical courses of treatment—they are regulating an important aspect of constitutional discourse.
Although courts have generally failed to treat professional speech as fully protected speech, a number of scholars have argued that professional-client communications serve First Amendment self-government, search for truth, and marketplace values.65 Commentators have focused on free speech values relating to the dissemination of expert knowledge, patients’ access to information regarding courses of treatment, and respect for professional knowledge communities. However, what is (p.62) so far missing from the analysis is an appreciation for the constitutional dimension of certain professional speech regulations.
By restricting political speech and suppressing or mandating the flow of information about rights-related subjects, professional rights speech regulations implicate core free speech concerns. These regulations also implicate non-speech rights, in the sense that they can undermine or interfere with their effective exercise. Governments can diminish or favor certain constitutional rights by restricting or mandating professional speech about or concerning those rights.
Focusing on the special category of professional rights speech highlights the untenable distinction Justice White and others have drawn between public and private professional speech. Allowing the state, through its licensing power, to regulate all speech that takes the form of “direct, personalized speech with clients,” as Justice White put it,66 risks subjecting a substantial amount of speech that relates not just to a matter of private concern but one of singular public importance.
It is certainly true that professionals are not like street corner orators, who seek to persuade or engage with broad segments of the public and, accordingly, are granted broad free speech rights. Professionals are in a relationship with the state that is structured by things such as licensure and professional standards. The state has power to regulate professionals in ways that are necessary to preserve the professional institution and protect clients from harmful interactions. However, lawyers, physicians, and other professionals are not merely professional automatons who dispense technical advice, medicines, and facts. They engage with their clients on a variety of subjects, including matters relating to constitutional rights.
Of course, physicians and patients discussing arms possession or abortion are not engaged in a seminar-like discussion of constitutional rights. However, they are engaged in discussions that touch upon, concern, and in some case affect the enjoyment of individual constitutional rights. A physician who is required to disclose not just accurate facts about abortion, but perceptions and viewpoints about it, is engaged in a (forced) ideological discourse about abortion rights. A physician banned from asking patients about firearms ownership owing, in part, to the legislature’s concern that she might dissuade a patient from exercising that right is prohibited from engaging in rights discourse.
The exchange of factual information and viewpoints about the decision whether to exercise a constitutional right, the manner in which to do so, and the implications of that decision are not merely of concern to the individual client or patient. What patients learn in the examining room or professional office may affect discussions about abortion, arms, and other concerns at home, at work, or in public venues. As one commentator has noted, “professionals provide individuals with access to information that enables the latter to come to important decisions affecting their lives.”67 (p.63) In particular, they “take an active part in assisting in the vindication of existing legal and constitutional rights in courts and other government fora.”68 Even intimate, personal treatment advice can provide a basis for taking political action concerning constitutional rights. As Dean Robert Post has argued, “there is no reason why public opinion might not be formed one conversation at a time.”69
Courts have generally elided these concerns by treating professional-client interactions relating to rights as a form of conduct that is not covered by the Free Speech Clause. Like the public-private distinction, however, the speech-conduct distinction ignores not just the fact that specific communications are often the object of regulation, but also the special constitutional functions of professionals and the free speech values associated with professional rights speech.
Under the professional conduct approach, even a lawyer’s questions and legal filings in a constitutional case would ostensibly represent part of a “course of conduct” subject to state regulation. But surely the government cannot ban lawyers from interviewing their clients about certain constitutional violations, or prohibit them from bringing claims the state believes to be harmful or misguided on the merits. Nor, presumably, can the state compel lawyers to communicate specific information to clients about the special burdens of civil rights litigation, in an effort to persuade clients not to pursue such claims.
Again, in contrast to lawyers, other professionals may not be natural state adversaries. However, as discussed earlier, they are involved to a significant degree with constitutional concerns and rights. Thus, their participation in rights discourse is also deserving of free speech protection. Courts have generally failed to recognize that, as one commentator has observed, “professional speech serves to educate the citizenry, is integral to the workings of self-government, and may even itself form part of a lesson in democracy.”70 These functions are particularly associated with professional communications about or concerning constitutional rights.
Recognizing that the Free Speech Clause applies to professional rights speech does not mean that all regulations will fail constitutional scrutiny. Even under the most rigorous “strict” scrutiny, if the state can provide compelling reasons for mandating disclosures about abortion or restricting questions about firearms, and show that its law is narrowly tailored to address these concerns, the law will survive. However, forcing the state’s ideology on professionals or patients, or protecting patients from potentially persuasive arguments about constitutional rights, are not compelling interests.
To be sure, there will be some close and difficult cases. Consider, for example, state bans on so-called reparative talk therapy for minors. Such laws appear merely to outlaw a form of therapy that is particularly harmful to minor patients. However, insofar as their purpose is to suppress expression of an old and discredited form of (p.64) bigotry against gay and lesbian persons—that is, the notion that homosexuality is a curable disease—these laws implicate the Free Speech Clause. When the state uses its regulatory power to suppress a viewpoint or perspective concerning gay and lesbian equality, the Free Speech Clause requires a form of heightened scrutiny.
States have argued that reparative talk therapies are physically and psychologically harmful to minors—a contention that appears to be supported by leading psychological institutions and associations. Thus, states can plausibly and perhaps successfully argue that the purpose of the reparative therapy bans is to protect minors from harm—an undoubtedly compelling interest. The laws, which prohibit reparative therapies only for minors and otherwise permit therapists to discuss these therapies with patients, may also be narrowly tailored to further the state’s interest.
Thus, governments are not flatly forbidden from regulating professional communications any time a constitutional right is implicated in the discussion. Rather, the contention is that the Free Speech Clause is implicated, and thus must be carefully addressed in such cases, owing to the possibility that the state is attempting to structure rights discourse or undermine the exercise of a constitutional right.
Governmental Rights Speech
As noted earlier, governments and their officials also communicate about constitutional rights. They do so through laws and official pronouncements, as well as through the official statements of individual government actors. Laws banning same-sex marriage, protecting religious freedoms, and prohibiting government funds from being used to fund speech advocating abortion are all examples of governmental rights speech. The concept or principle of “government speech” is relatively new to Free Speech Clause doctrine, and it is still developing in and outside the courts. This final section examines the current scope and potential limits of governmental communications about or concerning constitutional rights, with a special emphasis on what, if any, function the Free Speech Clause might perform in this regard.
Government Speech and Constitutional Rights
Governments are broadly empowered to communicate with regard to policies, programs, and other matters of public concern. Through laws, policies, and other means, they adopt and communicate positions regarding the health effects of smoking, the importance of access to healthcare, and other matters relating to the public welfare. None of these communications relate to constitutional rights or typically raise any constitutional concerns.
(p.65) Governments and officials also communicate with regard to a wide variety of constitutional rights. Through what has been referred to as “expressive lawmaking,” governments communicate official thoughts, ideas, and beliefs about or concerning constitutional rights such as equality, privacy, religious freedom, the right to bear arms, and other rights.71 These communications are part of the general category of “government rights speech.”
We have already examined some of the basic Free Speech Clause rules for regulating private speech. For instance, content-based regulations are subject to a strict and demanding form of scrutiny, while content-neutral regulations survive if they meet a lesser standard. It is also well-established that when government subsidizes rather than regulates speech, it may exercise relatively broad control over the messages conveyed with taxpayer funds. However, it may not discriminate based on viewpoint.72
However, when the government conveys its own point of view—that is, acts as a speaker—it is not required to subsidize content and viewpoints that are inconsistent with its own. Thus, if the government provides family planning funds in order to convey a pro-life message, it is not required to fund communications that advocate or prescribe abortion. Indeed, the Supreme Court has held that when the government acts as a speaker, it is not required to comply with any of the ordinary First Amendment rules—including, most importantly, the requirement that it not discriminate based on content.73 As speakers, governments and officials can reject private viewpoints, including those about or concerning constitutional rights, that conflict with their own or with which they disagree.74
The Supreme Court has not been very clear about when, or in what circumstances, the government is indeed acting as a speaker—as opposed to a regulator of private speech or a subsidizer of speech. These are obviously critical distinctions, since they establish the constitutional rules under which the government’s actions are reviewed. Application of the government speech principle not only allows governments to affirmatively weigh in on constitutional issues. It also potentially allows governments to restrict private rights speech and immunize a form of official viewpoint discrimination with regard to constitutional rights. In other words, as speakers, governments can significantly affect both rights discourse and the exercise of constitutional rights.
For example, as discussed in Chapter 5, government speech about equality rights has had a profound impact on constitutional equality movements. Through racial apartheid and anti-LGBT enactments, government officials and institutions have expressed strongly negative viewpoints regarding racial and sexual orientation equality. These laws and official policies significantly affected discourse about equal protection and delayed or denied equal protection for millions of Americans. As (p.66) discussed earlier, governments have communicated pro-life views through mandatory abortion disclosures and spending conditions. These expressive laws are at least partially intended to persuade women not to exercise a constitutional right.
Of course, not all governmental rights speech seeks to deter or prevent the exercise of constitutional rights. As speakers, governments and officials also communicate for the purpose of stressing the importance of access to abortion, extolling the fundamental nature of the right to bear arms, and emphasizing the need to preserve and protect the free exercise of religion. Along with private rights speech and professional rights speech, these official communications are a critically important part of our constitutional rights discourse.
Constitutional Limits on Governmental Rights Speech
One of the things that remains frustratingly unclear with regard to government speech is whether there are any constitutional limits on such communications. There are several possibilities. However, consistent with the general focus of the book, my central concern is whether the Free Speech Clause itself might limit or restrict some governmental rights speech.
The Constitution’s text, Supreme Court precedents, and constitutional scholarship suggest a few potential limits on governmental rights speech. The Ninth Amendment prohibits governmental “disparage[ment]” of un-enumerated rights (rights not listed in the Bill of Rights, for example).75 However, it is not clear that “disparagement” includes official communications that denigrate or disfavor constitutional rights. The Supreme Court has also indicated that government speech is limited by the Establishment Clause, which requires that governments remain neutral with regard to religion and not endorse particular religious sects or creeds.76 This may limit certain governmental communications about religion or Free Exercise Clause rights. Further, as it has been interpreted by the Supreme Court, the Due Process Clause limits the extent to which government can communicate for the purpose of persuading a woman not to obtain an abortion. Although government may communicate (or fund communication of) moral and other objections to abortion, it may not coerce a woman or effectively deny her the right to choose.77 Finally, with regard specifically to governmental speech about or concerning equal protection, some scholars have posited that the Fifth and Fourteenth Amendments limit governmental communications that disparage persons or convey official support for unequal treatment under law.78
Of more specific concern, some scholars have suggested that the Free Speech Clause may function as a partial limit on government speech.79 For example, Professor Michael Dorf has argued that some denials of equality impose distinct (p.67) expressive harms on individuals.80 He contends that part of the harm in discriminatory laws and regulations inheres in the coercion of private speech.81 Thus, Professor Dorf posits a law requiring that all non-heterosexuals wear a visible pink triangle in public places.82 As he notes, the harm produced by such a law is partly expressive—it compels the wearer to self-identify as non-heterosexual and communicates an “unmistakable message of second-class citizenship.”83 However, Dorf ultimately concludes that the infirmity in such laws is only partially rooted in First Amendment compelled-speech concerns.84 He observes that the primary harm visited upon gays and lesbians relates to the Equal Protection Clause—the imposition of second-class status owing exclusively to their non-heterosexuality.85
Professor Nelson Tebbe more fully embraces the Free Speech Clause as a possible limit on certain forms of governmental rights speech. Tebbe suggests that the Free Speech Clause is a direct restraint or limitation on at least some governmental communications about or concerning constitutional rights. In brief, he argues that a principle of “nonendorsement” cuts across constitutional rights.86 The nonendorsement principle, which is based in part on Free Speech Clause concerns, prohibits government from denying full and equal citizenship to all persons.87 Professor Tebbe contends that at least some free speech theorists would likely condemn racialized government speech on the ground that it distorts democratic discourse.88 Under the nonendorsement principle, Tebbe observes, this kind of government speech “can constitute speakers as disregarded or disabled participants in political life.”89 Professor Tebbe claims that this affects fundamental First Amendment rights relating “to participation in the political community, including the freedom of expression.”90
Tebbe, like Dorf, argues that equal protection is the most important constitutional limitation on anti-gay government speech. However, he also acknowledges that the “constitutional harm worked by [same-sex marriage bans] could be seen as expressive, at least in part.”91 Thus, Tebbe writes that “excluding same-sex couples from civil marriage sends an impermissible signal that their unions are not morally valued.”92 Although he ultimately grounds his nonendorsement objection to marriage bans in equal protection, Tebbe allows that “[f]ree speech could be implicated as well, insofar as members of same-sex couples are prevented from sending the message that they are married in the fullest sense or are otherwise silenced.”93 Tebbe frames the central question this way: “Under what circumstances will constitutional law refuse the community’s desire to express its values in the name of healthy deliberation itself?”94 When, in other words, can government speech be “interrupted,” on the ground that it is harming democratic deliberation and freedom of expression?95
In these scholars’ accounts, the Free Speech Clause appears to be a partial, if somewhat uncertain, substantive limit on certain types of governmental rights speech. (p.68) Under their approaches, governmental rights speech that inflicts serious harm, interferes with the exercise of constitutional rights, or harms democratic deliberation might be subject to Free Speech Clause scrutiny and limits.
Note, however, that neither Dorf nor Tebbe fully embraces the Free Speech Clause as a limitation on governmental speech about rights. Their ambivalence likely stems, in part, from the fact that governments frequently communicate with respect to and even “endorse” positions relating to constitutional rights. Thus, constraining governmental rights speech under the Free Speech Clause could broadly inhibit officials from participating in rights discourse. As other scholars have observed, governments are important participants in public discourse about matters of public concern—including constitutional rights.96 Governments can and do perform some affirmative functions in the marketplace of ideas about rights. For example, they enhance and facilitate conversations about the moral and social underpinnings of constitutional rights, and educate citizens about the nature and scope of constitutional rights.
On this view, the state ought to be permitted to publicly express its views regarding contested rights such as abortion, religious liberty, equal protection, and the right to bear arms. Governmental rights speech can facilitate a more pluralistic rights discourse. What is more, some of the reasons for supporting robust governmental participation in this discourse are based on Free Speech Clause principles and values.97 Governmental rights speech contributes to the marketplace in ideas and facilitates self-government by adding public discourse on public policy and public rights. On this view, the Free Speech Clause ought not to limit governmental rights speech, but be interpreted to affirmatively support it.
Insofar as they suggest that the Free Speech Clause itself perform a limiting function with regard to official communications concerning constitutional rights, Dorf and Tebbe may be asking the Free Speech Clause to do too much, or indeed the wrong kind of, work. Instead, limits on governmental rights speech, whether it denigrates equal protection, favors religion, or coerces women not to exercise the abortion right, ought to come from two primary sources. First, such communications may offend and violate a non-speech substantive right. The Equal Protection Clause, the Establishment Clause, and the Due Process Clause may already impose limits on governmental speech about or concerning constitutional rights. Rather than look to the Free Speech Clause as a limit, we ought to rely upon these and other non-speech rights as constraints on governmental rights speech. The first line of defense against disparaging or discouraging governmental rights speech ought to be the substantive rights the government seeks to disparage or discourage.
Second, litigants, courts, and scholars need to think more carefully about the definition and scope of the government speech principle. It is clear that we need to develop clearer standards about when and whether the government is indeed (p.69) speaking, as opposed to regulating or subsidizing private speech about rights. Among other things, these distinctions are critically important to ensuring that wholesale suppression of private rights speech cannot be defended on government speech grounds. The doctrine or principle of government speech ought also to require that governmental rights speech, in particular communications that disparage individuals or discourage the exercise of rights, be clearly conveyed and closely identified with government. This clarity and transparency will allow citizens to better identify official communications about constitutional rights and hold their representatives accountable for them.
In sum, we ought to rely on substantive non-speech protections and a more limited and constrained government speech principle to address the harms inflicted by certain kinds of governmental rights speech. Official communications about constitutional rights are a legitimate and important part of constitutional rights discourse. However, the government is a uniquely powerful speaker in the marketplace. It has the capacity to communicate with the broadest audiences and access to a range of powers that can inhibit both discourse about rights and the effective exercise and enjoyment of rights. To preserve the Free Speech Clause’s facilitative and mediating functions with respect to rights, we need to develop and assert substantive non-speech rights defenses to official communications and limit the principle or doctrine of government speech itself.98
Three different kinds of speakers—private, professional, and governmental—actively participate in ideological, informational, and consultative discourse about constitutional rights. Regulation of private rights speech implicates the central values and justifications of the Free Speech Clause and affects the exercise of the subject constitutional rights. Professional consultations relating to constitutional rights raise similar concerns. Finally, governmental rights speech that disparages individuals or discourages them from exercising constitutional rights implicates both free speech and non-speech concerns.
Private, professional, and governmental rights speech are all part of a broad discourse about constitutional rights. However, thus far courts have not applied the Free Speech Clause with any vigor or consistency to private and professional rights speech. Indeed, in these areas, courts often fail to recognize or identify rights speech concerns at all. Yet seemingly neutral public order, public resource, and public records laws can significantly impact constitutional rights discourse. So too with professional licensure schemes, which some courts have interpreted to grant (p.70) officials near-plenary authority to regulate even professional speech that relates to or concerns constitutional rights. With regard to governmental rights speech, the Supreme Court has so far merely hinted at some constitutional limits. Insofar as the Constitution is concerned, it is not clear whether governmental rights speech is subject to any limits at all.
The Free Speech Clause must continue to perform its central function of ensuring that conversations about or concerning constitutional rights are as robust and wide open as possible. This will require that courts pay closer attention to the manner in which certain speech restrictions or mandates implicate rights discourse. Properly contextualized, regulations of private and professional rights speech ought to be subject to meaningful free speech scrutiny.
Governmental rights speech raises distinct complications. Although the Free Speech Clause is certainly relevant to the consideration of how governments communicate about constitutional rights, it asks too much of the Free Speech Clause to function as a formal limit on governmental rights speech. We ought not to discourage governments from communicating about rights. However, we ought to limit their influence in the democratic processes in which rights are discussed, interpreted, and exercised. The proper means for doing so are to enforce non-speech rights limitations and clarify the scope and substance of the government speech principle.
(1.) See generally Timothy Zick, “Rights Speech,” 48 U.C. Davis L. Rev. 1 (2014); Timothy Zick, “Professional Rights Speech,” 47 Ariz. St. L.J. 1 (2016).
(2.) I am grateful to one of my manuscript reviewers for suggesting that I distinguish among the different types of rights speech.
(3.) Central Radio Co., Inc. v. City of Norfolk, 776 F.3d 229 (4th Cir. 2015), aff’d in part, rev’d in part, and remanded, 811 F.3d 625 (4th Cir. 2016).
(4.) Subsequent to the Fourth Circuit’s decision, the Supreme Court invalidated a sign code that was very similar to Norfolk’s, on the ground that it was based on subject matter and failed to satisfy strict scrutiny. See Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). The Fourth Circuit case was on appeal to the Supreme Court when Reed was decided, and was remanded to the Fourth Circuit in light of the Court’s decision.
(5.) Central Radio Co., 776 F.3d at 242 (Gregory, J., dissenting).
(7.) See, e.g., Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 757 (1994) (invalidating broad bubble provision that banned all unwanted physical approaches, but upholding 36-foot buffer zone and other injunctive provisions); Hill v. Colorado, 530 U.S. 703, 725 (2000) (upholding state law restricting certain unwanted approaches near abortion clinics).
(8.) See, e.g., S.D. Codified Laws § 34-23A-10.1(1)(c) (2011). See also Planned Parenthood Minn. v. Rounds (Rounds II), 686 F.3d 889, 906 (8th Cir. 2012) (en banc) (upholding mandatory script that required, among other things, that physician inform woman that abortion would affect “human being”); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 577 (5th Cir. 2012) (rejecting physicians’ compelled speech challenge to mandatory abortion disclosure law); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 794 F. Supp. 2d 892, 916, 918 (S.D. Ind. 2011) (upholding requirement that physicians inform abortion patients that “human physical life begins when a human ovum is fertilized by a human sperm”).
(9.) See Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1086 (9th Cir. 20020 (en banc) (upholding imposition of civil liability for distribution of “Wanted” posters and operation of “Nuremberg Files” website that identified specific abortion providers).
(10.) See, e.g., Frisby v. Schultz, 487 U.S. 474, 488 (1988) (upholding restriction on “targeted picketing” outside residence of abortion provider).
(11.) See Rust v. Sullivan, 500 U.S. 173, 196 (1991) (upholding federal funding restrictions on abortion counseling by physicians at federally funded programs).
(12.) See Evergreen Ass’n v. City of New York, 740 F.3d 233, 249–50 (2d Cir. 2014) (invalidating pregnancy center services disclosure provision under strict and intermediate scrutiny); Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt. (Greater Balt. Ctr. I), 683 F.3d 539, 555 (4th Cir. 2012) (invalidating mandatory pregnancy center disclosures under strict scrutiny). But see Fargo Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176, 182 (N.D. 1986) (upholding mandatory disclosures).
(13.) See Frye v. Kan. City Mo. Police Dep’t, 375 F.3d 785, 792 (8th Cir. 2004) (holding that a restriction allowing demonstrators to display signs depicting abortion images further from a busy road was narrowly tailored to serve a compelling interest in public safety); Tatton v. City of Cuyahoga Falls, 116 F. Supp. 2d 928, 934 (N.D. Ohio 2000) (finding that officers who had ordered protester to cease displaying images of aborted fetuses were entitled to qualified immunity against free speech claims); St. John’s Church in the Wilderness v. Scott, 296 P.3d 273, 283–85 (Colo. App. 2012) (upholding an injunctive provision banning protesters from displaying signs with images of aborted fetuses near a church); and Operation Save Am. v. City of Jackson, 275 P.3d 438, 461 (Wyo. 2012) (suggesting that injunction against display of images of aborted fetuses might be valid if there was sufficient evidence regarding injury or potential injury such as irreparable harm to children).
(14.) Choose Life Ill., Inc. v. White, 547 F.3d 853, 866 (7th Cir. 2008) (finding that Illinois prohibition of pro-choice license plates but not pro-life ones was reasonable because “[t]o the extent that messages on specialty license plates are regarded as approved by the State, it is reasonable for the State to maintain a position of neutrality on the subject of abortion”).
(15.) In four decisions, the Eleventh Circuit considered, under different standards of scrutiny, a Florida law restricting physician inquiries concerning firearms possession. See Wollschlaeger v. Governor of Fla. (Wollschlaeger I), 760 F.3d 1195, 1220 (11th Cir. 2014), vacated and superseded on reh’g, Wollschlaeger v. Governor of Fla. (Wollschlaeger II), 797 F.3d 859 (11th Cir. 2015), (p.263) vacated and superseded on reh’g, Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger III), vacated and superseded on reh’g en banc, Wollschlaeger v. Governor of Fla. (Wollschlaeger IV), 848 F.3d 1293 (11th Cir. 2017).
(16.) See Jim Malewitz, “Lawmakers Move Swiftly to Block Release of Gun Permit Records,” Stateline (Mar. 7, 2013), http://www.pewstates.org/projects/stateline/headlines/lawmakers-move-swiftly-to-block-release-of-gun-permit-records-85899457096 (discussing recent enactments in Maine, Virginia, Arkansas, and Mississippi).
(17.) See Kelsey M. Swanson, “The Right to Know: An Approach to Gun Licenses and Public Access to Government Records,” 56 UCLA L. Rev. 1579, 1623-25 (2009) (addressing arguments against disclosure of gun records).
(18.) See “OC Student Ordered to Remove NRA T-Shirt Because it Promotes Gun Violence,” CBS Los Angeles, Oct. 2, 2013, available at http://losangeles.cbslocal.com/2013/10/02/oc-high-school-student-ordered-to-remove-nra-t-shirt-because-it-promotes-gun-violence/; Kevin Dolak, “W. Va. Teen Arrested After “Almost Starting Riot” Wearing NRA Shirt to School,” abcnews.com, Apr. 22, 2013, available at http://abcnews.go.com/US/west-virginia-teen-arrested-wearing-nra-shirt-school/story?id=19017896#.UXai76KG3To. See also Newsom v. Albemarle County Sch. Bd., 354 F.3d 249 (4th Cir. 2003) (granting student injunction against school prohibition on wearing NRA hunting t-shirt).
(19.) See FIRE, “First Amendment Rights Trampled by Pittsburgh College after Student Advocates for Concealed Carry of Firearms on Campus,” May 27, 2009, available at http://www.thefire.org/first-amendment-rights-trampled-by-pittsburgh-college-after-student-advocates-for-concealed-carry-of-firearms-on-campus/.
(20.) See Kan. Stat. Ann. § 75-6705 (West 2014) (prohibiting local officials from using state funds to lobby for or against gun control at the state level).
(21.) See Arthur L. Kellermann & Frederick P. Rivara, “Silencing the Science on Gun Research,” 309 J. Am. Med. Ass’n. 549 (2013).
(22.) See Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006) (upholding against free speech challenge school officials’ decision to prohibit student from wearing T-shirt conveying anti-gay message, in part on ground that gay students’ self-worth was negatively affected); Riccio v. New Haven Bd. of Ed., 467 F. Supp.2d 216 (D. Conn. 2006) (fact issues precluded summary judgment on claims of same-gender harassment based on sexual orientation).
(23.) See Revised Resolution Rule 8.4: Misconduct, Am. Bar Ass’n, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/final_revised_resolution_and_report_109.authcheckdam.pdf (last visited October 15, 2016) (proposing extended protection for transgender individuals and including gender identity in definition of protected groups).
(24.) See, e.g., Lexington Fayette Urban Cty. Human Rights Comm’n v. Hands on Originals, Inc., No. 2015-CA-000745-MR (Ky. Ct. App. May 12, 2017) (refusal to print T-shirt promoting gay pride festival did not violate anti-discrimination ordinance). Cf. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) (application of anti-discrimination law to require parade organizers to allow LGBT group to march in parade violated organizers’ right not to be compelled to speak). In these cases, which have also sometimes involved bakers, photographers, and others who challenge requirements that they participate in same-sex marriage ceremonies, there is an antecedent question whether there is any compulsion of speech. In the event speech is compelled, it is arguably a form of rights speech—communications that advocate, favor, or accept the equality of LGBT persons.
(25.) See King v. Governor of N.J., 767 F.3d 216, 240 (3d Cir. 2014) (rejecting Free Speech Clause challenge to New Jersey’s ban on sexual orientation change efforts (SOCE) for minor patients); Pickup v. Brown, 740 F.3d 1208, 1231 (9th Cir. 2014) (rejecting Free Speech Clause challenge to California’s SOCE ban).
(26.) There have been a number of cases involving abortion speech in public schools and at colleges and universities. See, e.g., Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 34 (10th Cir. 2013) (upholding restriction on distribution of rubber fetus dolls, owing to concerns about disruption); Heinkel ex rel. Heinkel v. Sch. Bd. of Lee County, 2005 WL 1571077 (M.D. Fla. July 1, 2005) (upholding school’s restriction on student distribution of literature addressing alternatives to abortion, based primarily on concerns about disruption); O’Neal v. Falcon, 668 F. Supp. 2d 979, 985–87 (W.D. Tex. 2009) (holding that instructor’s decision not to allow student in speech class to discuss abortion did not violate the Free Speech Clause).
(27.) Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (2015).
(28.) See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (The Free Press, 1993); Joseph Blocher, “Gun Rights Talk,” 94 B.U. L. Rev. 813 (2014).
(29.) See Akhil Reed Amar, “First Amendment Firstness,” 47 U.C. Davis L. Rev. 1015, 1027 (2014).
(30.) See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 235 (Yale Univ. Press, 1998) (observing that Reconstruction Republicans frequently mentioned and invoked expressive rights in debates).
(31.) See Reva B. Siegel, “The Jurisgenerative Role of Social Movements in United States Constitutional Law,” at 11 (for publication with the papers of the Seminario en Latino América de Teoria Constitucional y Politica (SELA), June 10–12, 2004, Oaxaca, México) (emphasizing the need each movement has “to express its values as public values” and to persuade citizens and officials to recognize claims).
(32.) N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
(33.) See, e.g., Robert C. Post & Reva B. Siegel, “Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act,” 112 Yale L.J. 1943, 2030 (2003) (observing that “the First Amendment ensures that all Americans can express their beliefs about the Constitution”).
(34.) 515 U.S. 557 (1995).
(35.) 530 U.S. 640 (2000)
(36.) See Post & Siegel, supra note 33, at 2030.
(37.) Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015).
(38.) See Linda Greenhouse & Reva B. Siegel, “Before (and After) Roe v. Wade: New Questions about Backlash,” 120 Yale L.J. 2028 (2011) (surveying arguments about Roe’s effect on social and political discourse regarding abortion rights); Reva B. Siegel, “The Right’s Reasons: Constitutional Conflict and the Spread of Women-Protective Antiabortion Argument,” 57 Duke L.J. 1641 (2008) (noting the recent shift toward protection of women as a justification for abortion restrictions).
(39.) See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 24–25 (Harper, 1960) (discussing self-government and other democratic values associated with freedom of speech).
(40.) Robert Post, Constitutional Domains: Democracy, Community, Management 166 (Harvard Univ. Press, 1995).
(41.) Regarding the concept of speech marketplaces and the search for truth by means of free speech, see Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), and John Stuart Mill, On Liberty 16-20 (Hackett Pub. Co., 1978).
(42.) See Caroline Mala Corbin, “Compelled Disclosures,” 65 Ala. L. Rev. 1277, 1292–98 (2014) (discussing marketplace-based objections to compelled abortion disclosures).
(43.) See Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (invalidating restriction on abortion advertising in part because “the activity advertised pertained to constitutional interests”).
(44.) See Corbin, supra note 42, at 1259–58.
(45.) First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978).
(46.) See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 883 (1992).
(47.) See Carol Sanger, “Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice,” 56 UCLA L. Rev. 351, 360–61 (2008) (asking “when or to what extent may the state persuade a person not to exercise a constitutional right?”).
(48.) See Post & Siegel, supra note 33, at 2030 (“the First Amendment ensures that all Americans can express their beliefs about the Constitution”).
(49.) See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (“Petitioners are not protesters. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them.”).
(50.) See, e.g., Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998) (upholding rejection of pro-life advertisement from city transit spaces).
(51.) See Rust v. Sullivan, 500 U.S. 173 (1991) (upholding federal regulations prohibiting fund recipients from discussing abortion with patients); Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006) (upholding federal condition requiring equal access for military employers to law school campuses). For criticism of the FAIR decision, see Dale Carpenter, “Unanimously Wrong,” 2006 Cato Sup. Ct. Rev. 217, 246; Erwin Chemerinsky, “Why the Supreme Court Was Wrong about the Solomon Amendment,” 1 Duke J. Const. Law & Pub. Poly. 259, 275–76.
(52.) See generally Zick, “Professional Rights Speech,” supra note 1.
(53.) See Lowe v. SEC, 472 U.S. 181, 232 (1985) (White J., concurring) (“Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice . . . ; it becomes regulation of speaking or publishing as such, subject to [the First Amendment].”).
(54.) See id. (“One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (acknowledging that physician’s free speech rights were “implicated” by mandatory abortion disclosure law, but “only as part of the practice of medicine, subject to reasonable licensing and regulation by the State . . .”).
(55.) Casey, 505 U.S. at 804 (joint opinion).
(56.) Kathleen Sullivan, “Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights,” 67 Fordham L. Rev. 569, 571 (1998).
(57.) See In re Primus, 436 U.S. 412, 412 (1978) (invalidating state anti-solicitation rule as applied to an ACLU lawyer seeking to represent a woman in a forced sterilization case); NAACP (p.266) v. Button, 371 U.S. 415, 428–29 (1963) (invalidating Virginia law that restricted solicitation of clients for purposes of challenging racial segregation in public schools); Gentile v. State Bar, 501 U.S. 1030, 1034 (1991) (describing lawyer’s press conference statements as “classic political speech . . . critical of the government and its officials”).
(58.) See Frederick Schauer, “First Amendment Opportunism,” in Lee C. Bollinger & Geoffrey R. Stone, Eternally Vigilant: Free Speech in the Modern Era (Univ. of Chicago Press, 2002).
(59.) S.D. Codified Laws § 34-23A-10.1(1)(b) (2011).
(60.) Id. § 34-23A-10.1(1)(c).
(61.) See Planned Parenthood Minn. v. Rounds, 686 F.3d 889, 906 (8th Cir. 2012) (en banc); Planned Parenthood Minn. v. Rounds, 530 F.3d 724, 738 (8th Cir. 2008) (en banc) (vacating preliminary injunction); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 794 F. Supp. 2d 892, 918 (S.D. Ind. 2011) (upholding requirement that physicians inform abortion patients that “human physical life begins when a human ovum is fertilized by a human sperm”).
(62.) See N.C. Gen. Stat. Ann. § 90-21.85(a)(2), (a)(4) (West 2011); Tex. Health & Safety Code Ann. § 171.012(a)(4)(C), (D) (West 2011); LA. Rev. Stat. Ann. § 1299.35.2(D)(2)(a) (2012).
(63.) See Caroline Mala Corbin, “Abortion Distortions,” 71 Wash. & Lee L. Rev. 1175, 1190-94 (2014) (discussing courts’ failure to apply strict scrutiny to physicians’ compelled speech in the abortion disclosure context). See also Jennifer M. Keighley, “Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech,” 34 Cardozo L. Rev. 2347, 2389 (2013); Robert Post, “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” 2007 U. Ill. L. Rev. 939, 959–62 (2007).
(64.) See generally Jesse Hill, “The First Amendment and the Politics of Reproductive Health Care,” 50 Wash. U. J. L. & Pol’y 103 (2016).
(65.) For general commentary on professional speech, see Robert C. Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale Univ. Press, 2012); Daniel Halberstam, “Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions,” 147 U. Pa. L. Rev. 771 (1999); Claudia Haupt, “Professional Speech,” 125 Yale L.J. 1150 (2015); Robert Kry, “The ‘Watchman for Truth’: Professional Licensing and the First Amendment,” 23 Seattle U. L. Rev. 885 (2000). For works that examine speech restrictions relating to specific professionals, such as lawyers or physicians, see Paula Berg, “Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice,” 74 B.U. L. Rev. 201 (1994); Sanger, supra note 47; Sullivan, supra note 56.
(66.) Lowe, 472 U.S. at 232 (White, J., concurring in the result).
(67.) Halberstam, supra note 65, at 812.
(69.) Post, supra note 65, at 61.
(70.) Halberstam, supra note 65, at 815.
(71.) See Helen Norton, “The Equal Protection Implications of Government’s Hateful Speech,” 54 Wm. & Mary L. Rev. 159 (2012) (addressing equal protection limits on government speech regarding homosexuality and gay rights); Deborah Hellman, “The Expressive Dimension of Equal Protection,” 85 Minn. L. Rev. 1 (2000) (discussing equal protection concerns relating to laws regarding homosexuality). See also Elizabeth S. Anderson & Richard H. Pildes, “Expressive Theories of Law: A General Restatement,” 148 U. Pa. L. Rev. 1503, 1531–51 (2000) (focusing on equal protection and religious non-establishment limits on government speech).
(72.) See, e.g., Rust v. Sullivan, 500 U.S. 172, 175 (1991) (upholding regulations prohibiting physicians at government-funded health care facilities from counseling patients regarding abortion services).
(73.) See Pleasant Grove City v. Summum, 555 U.S. 640, 647 (2009) (“[I]f the government is engaging in [its] own expressive conduct, then the Free Speech Clause has no application.”).
(74.) See Walker v. Texas Division, Sons of Confederate Veterans, 135 S. Ct. 2239 (2015).
(75.) U.S. Const., amend IX.
(76.) Summum, 555 U.S. at 647.
(77.) See Maher v. Roe, 432 U.S. 464, 474 (1977) (government may “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds”); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 877–78 (1992) (joint opinion) (holding that government is permitted to seek to persuade women not to exercise their constitutional right to choose to terminate a pregnancy, so long as it does not coerce women or otherwise unduly interfere with the abortion decision). See also Sanger, supra note 47, at 360–61 (asking “when or to what extent may the state persuade a person not to exercise a constitutional right?”).
(78.) See Michael Dorf, “Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meaning,” 97 Va. L. Rev. 1267, 1293–98 (2011) (discussing equality concerns relating to official enactments regarding sexual orientation). See also Norton, supra note 71 (addressing equal protection limits on government speech regarding homosexuality and gay rights); Hellman, supra note 71 (discussing equal protection concerns relating to laws regarding homosexuality).
(79.) See Nelson Tebbe, “Government Nonendorsement,” 98 Minn. L. Rev. 648, 692 (2013) (arguing that government speech regarding constitutional rights, including equality and abortion rights, is subject to First Amendment free speech limits under a principle of “government nonendorsement”); Dorf, supra note 78, at 1300 (observing that “[s]ome of the constitutional harm done by a requirement that people wear a badge of inferiority sounds in freedom of expression”).
(80.) See Dorf, supra note 78.
(81.) Id. at 1278.
(82.) Id. at 1275.
(84.) Id. at 1298.
(85.) See id. at 1344 (arguing that same-sex marriage bans should be subject to heightened scrutiny “because the members of an identifiable victim group reasonably understand those laws as branding them and their relationships as second-class”).
(86.) Tebbe, supra note 79, at 653.
(87.) See id. at 650 (government nonendorsement principle “cuts across multiple provisions—including equal protection, due process, and free speech itself—and it brings them together to prohibit any endorsement that abridges full and equal citizenship in a free society”). However, not everyone agrees that the First Amendment is implicated in these contexts. See, e.g., Abner S. Greene, “Government Endorsement: A Reply to Nelson Tebbe’s Government Nonendorsement,” 98 Minn. L. Rev. 87, 90 (2013) (“None of this has anything to do with the freedom of speech.”).
(88.) Tebbe, supra note 79, at 666.
(89.) Id. at 667.
(90.) Id. at 667–68.
(91.) Id. at 676.
(92.) Id. at 676–77.
(93.) Id. at 677 n.107. Tebbe does not pursue the free speech objection more fully, he says, “because it involves mainly private speech.” Id. However, if the First Amendment has a constraining role, it would seem that part of its function would be to limit government’s ability to structure even private speech about something as significant as marital rights. In any event, it is not appropriate to characterize such speech—which is a central aspect of social discourse—as narrowly private or not touching upon matters of public concern.
(95.) Id. at 704–05.
(96.) See James E. Fleming & Linda C. Mcclain, Ordered Liberty: Rights, Responsibilities, and Virtues 4 (Harvard Univ. Press, 2013) (arguing that the state should use its persuasive powers to “help persons develop their moral capacities for self-government and, in that sense, live good lives”); Corey Brettschneider, When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality 73 (Princeton Univ. Press, 2012) (arguing that the state “should non-neutrally express and promote the values of free and equal citizenship”); Greene, supra note 87, at 88 (“With a few limits, the state, as a representative of the people in their capacity as citizens, may and should take distinctive positions on contested issues to achieve certain public goods, and to teach what the state believes to be true.”).
(97.) See Brettschneider, supra note 96, at 71–72 (proposing a concept of “value democracy” for government communications, which is grounded in the Free Speech Clause).
(98.) See, e.g., Stephen Gey, “Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?”, 95 Iowa L. Rev. 1259 (2010).