Document Type
Article
Publication Date
Fall 2019
OCLC FAST subject heading
Freedom of speech
Abstract
This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine. Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. Office of Disciplinary Counsel. Furthermore, the Article explores how Justice Clarence Thomas’s concurrence in a third 2018 decision—Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—heightens problems with the compelled-speech doctrine. The Article concludes by proposing multiple criteria for the Court to consider when determining the level of scrutiny to use in compelled-speech cases.
Recommended Citation
Clay Calvert, Wither Zauderer, Blossom Heightened Scrutiny? How the Supreme Court’s 2018 Rulings in Becerra and Janus Exacerbate Problems with Compelled-Speech Jurisprudence, 76 Wash. & Lee L. Rev. 1395 (2019)