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.
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)