Contributions

The Doctrinal Significance of Message Attribution in Compelled Speech Cases

by Jesse Klinger 1

Public accommodations laws are at risk of constitutional invalidation. 2 While constitutional objections to anti-discrimination laws have long filled casebooks, the contested terrain has shifted from property and contract to the First Amendment. 3 Businesses increasingly argue that any legal sanction for refusing to provide wedding-related goods or services to same-sex weddings violates their freedom of speech. 4

The First Amendment establishes that “Congress shall make no law . . . abridging the freedom of speech.” 5 Speech inherently includes the choice of what to leave unsaid. 6 Thus, freedom of speech includes the right to be free from government censorship of what one says and from government intrusion into one’s choice of what not to say. 7 Freedom from compelled speech, legal parlance for this latter right, is increasingly invoked to challenge enforcement of public accommodations laws.

Public accommodation laws prohibit discrimination based on enumerated protected characteristics in the provision of goods or services by places legislatively deemed public accommodations. Certain businesses argue that particular enforcements of these laws unconstitutionally compel speech by unjustifiably penalizing refusals to “create expression and convey unwanted messages.” 8

The validity of these compelled speech claims depends, in part, on the doctrinal significance of message attribution. Message attribution occurs when observers of expression associate the message conveyed with a particular speaker. If the government forced a journalist to include a paragraph in her article, for example, an ordinary observer would attribute the messages conveyed in that paragraph to the author. Alternatively, if the government required the same journalist to pay a fine in cash, the message conveyed by the inscription “In God We Trust” would ordinarily not be attributed to her. 9

When the government compels a speaker to convey a particular message or host the message of a third-party, there is a risk the message will be attributed to the speaker. The doctrinal significance of that risk is the focus of this article. More narrowly, the question considered is whether a likelihood of message attribution is necessary and/or sufficient to establish a constitutional infringement of the First Amendment in compelled speech cases. 10

Three tentative conclusions are derived from the Court’s compelled speech precedents. First, when the government compels speech that is likely to be misattributed, the government infringes the First Amendment. Second, when the government compels a specific message—for instance, the pledge of allegiance—the government infringes the First Amendment irrespective of the likelihood of message attribution. And third, when compelled speech is incidental to a content-neutral conduct regulation, likely message attribution is a prerequisite for an infringement. As public accommodation laws are content-neutral conduct regulations, likely attribution of any incidentally compelled speech is necessary to establish a First Amendment infringement.

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The Court has explicitly reserved judgment on the significance of message attribution. 11 Many doctrinal conclusions, however, are implicit before becoming explicit. Message attribution concerns undeniably have been invoked to distinguish compelled speech precedents.

The compelled speech doctrine encompasses two lines of cases: (1) the right to refuse to host or convey a particular message chosen by the government (“government message cases”); and (2) the right to refuse to host or convey the message of a third-party (“third-party message cases”). 12 These lines of cases, while not cleanly divided, display different concerns for and approaches to message attribution.

In government message cases, likely message attribution is not a prerequisite for compelled speech infringement. The two most prominent cases involved a government requirement that students perform the pledge of allegiance in school, West Virginia State Board of Education v. Barnette, 13 and a requirement that drivers display New Hampshire’s state motto, “Live Free or Die,” unobscured on their license plates, Wooley v. Maynard. 14 Both mandates were declared unconstitutional First Amendment infringements, yet neither decision relied on a likelihood of message attribution.

In Barnette, the Court struck down a West Virginia Board of Education resolution that required students to salute the flag and recite the pledge of allegiance. 15 The majority concluded, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 16 Accordingly, the pledge’s requirement of an “affirmation of a belief and an attitude of mind” was constitutionally problematic. 17 The Court embraced an autonomy-based view of First Amendment protection, as evidenced by the primacy of protecting the “individual freedom of mind” in its reasoning. 18 Freedom of mind is invaded by compelled speech irrespective of the likelihood of message attribution.

Similarly, likely message attribution was not necessary to establish an infringement in Wooley. A New Hampshire statute criminalized knowingly obscuring the state motto on certain vehicle license plates. 19 In the majority’s view, the statute had the effect of requiring individuals to use their cars as “a ‘mobile billboard’ for the State’s ideological message,” which it saw as impermissible: “[requiring] public adherence to an ideological point of view . . . ‘invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.’” 20 The Court displayed concern for forcing individuals to display the state’s ideological message regardless of whether observers would attribute the state motto’s presence on license plates to drivers.

However, the Court, in dicta, suggested that message attribution might be a necessary component of a compelled speech infringement. On message attribution grounds, the majority distinguished potential objections to the national motto “In God We Trust” on currency from the Maynards’ objection. Because money is “passed from hand to hand, [it] differs in significant respects from an automobile, which is readily associated with its operator.” 21 As dicta, this reasoning does not control. 22

Message attribution is doctrinally significant in third party message cases. PruneYard Shopping Center v. Robins, 23 an oft-cited example, involved a shopping center owner’s claimed First Amendment right to exclude from shopping center property high school students soliciting opposition to a United Nations resolution against “Zionism”. Finding no constitutional infirmity, the Court distinguished PruneYard from Wooley in three ways – two of which went directly to the concern for message attribution. 24 Most important to the Court’s reasoning was the determination that there was little likelihood that an observer would associate the students’ views with the owner of a business establishment open to the public. 25 Relatedly, the majority emphasized that the owner remained free to “expressly disavow any connection with the message by simply posting signs . . . disclaim[ing] any sponsorship of the message” and “explain[ing] that the persons are communicating their own message by virtue of state law.” 26 These disparate elements led to the conclusion that the shopping center owner’s freedom from compelled speech was not infringed. 27

Analogies to PruneYard were rejected by the plurality in Pacific Gas & Electric Co. v. Public Utilities Commission of California, 28 but accepted by a majority in Turner Broadcasting System, Inc. v. F.C.C. 29 Pacific Gas involved the California Public Utilities Commission’s requirement that a privately owned utility company include in its mailings a third-party’s newsletter. 30 The public nature of the shopping center in PruneYard, the Court explained, avoided the forced associational burden that existed when Pacific Gas was compelled to include statements of a third-party in its billing envelopes. 31 When confronted with a statutory requirement that cable television systems transmit local broadcast stations, conversely, PruneYard’s reasoning controlled due to cable broadcasters’ recognized roles as conduits. 32 Merely transmitting broadcast messages with which association is readily disclaimed presents little risk that viewers will attribute particular broadcast messages to individual cable operators. 33

That was the doctrinal environment the Court traversed in Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston. 34 The Irish-American Gay Lesbian and Bisexual Group of Boston (“GLIB”), by virtue of enforcement of a public accommodations law that prevented discrimination on the basis of sexual orientation, secured their inclusion in the Boston St. Patrick’s Day parade against the wishes of the parade council. A unanimous Court declared that application of Massachusetts law unconstitutional because the parade organizers’ autonomy to control their own speech was unjustifiably infringed. 35

Although unwilling to pronounce explicitly its significance, the likelihood of message attribution was the primary means by which the Court navigated its compelled speech precedents. Rejecting the argument that the parade council functioned as a conduit, the Court found “GLIB’s participation would likely be perceived as having resulted from the Council’s customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well.” 36 The message attribution risk differential between the cable operators in Turner and the parade organizers in Hurley was exacerbated because the Court found there was no traditional means for parade organizers to disclaim association with the messages of particular participants. 37 The Court highlighted the same differences – the likelihood of message attribution and the practicality of disclaimers – to distinguish PruneYard. 38

Most recently, in Rumsfeld v. Forum for Academic and Institutional Rights (“FAIR”), 39 law schools that wanted to deny access to military recruiters in protest of “don’t ask, don’t tell policies” were found similarly situated to the owner in PruneYard. 40 Nothing about providing “equal treatment” to military recruiters as required by the Solomon Amendment, “suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.” 41 Previously, the Court found that high school students could appreciate the difference between speech a school sponsors and speech a school is legally required to permit and “[s]urely students have not lost that ability by the time they get to law school.” 42 Barnette and Wooley were distinguishable because the equal access provision of the Solomon Amendment, “unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only ‘compelled’ if . . . the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.” 43

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The Court has not found the appetite to lay out the precise significance of message attribution in the compelled speech doctrine. However, the Court’s reasoning evidences three relevant conclusions. First, likely message attribution is sufficient to establish a compelled speech infringement. Where misattribution of a compelled message has been likely, the Court has consistently found constitutional infringements. It would thus be surprising for the Court to find otherwise in the future.

Second, likely message attribution has not been a prerequisite to infringements in compelled government message cases. Neither Barnette nor Wooley relied on such a finding. Moreover, we know the consideration was not entirely out of mind because the respective dissents argued message attribution’s doctrinal importance. 44

A source of controversy is whether the reasoning in these decisions should be cabined to cover only government message cases. 45 For some, Wooley stands for the proposition that consideration of message attribution is not necessary in all compelled speech cases. 46 Undoubtedly, the Court never hermetically sealed the doctrines. However, PruneYard explicitly distinguished Wooley on government message and likelihood of attribution grounds. 47 And Fair analyzed the government message and third-party message cases separately. Even if the cases reflect such a division, why should the importance of the likelihood of message attribution differ depending on whether the message compelled is the government’s or a third-party’s? The Court’s reasoning indicates that the risk of government favoritism towards particular messages in compelled government message cases is sufficient for such compulsions to infringe the First Amendment irrespective of message attribution. 48

Third, one might think likely message attribution is necessary in third-party compelled speech cases. Even absent doctrinal spillover from Wooley, however, likely message attribution is not required in all third-party message cases. Tornillo and Pacific Gas found infringements absent determinations of likelihoods of attribution. However, the restrictions at issue were deemed content-based speech compulsions, arguably presenting the danger of government favoritism towards particular messages. 49 The government can favor particular messages by compelling individuals to speak messages chosen by third parties sympathetic to the government’s viewpoint, as it can by mandating a specific message it chooses directly. Absent similar protection for government message and content-based compulsions, the government infringes the First Amendment when it requires pro-choice mottos be displayed on license plates, but may not when it mandates bumper stickers chosen by Planned Parenthood be placed on cars. 50

A narrower conclusion would be that in compelled-speech cases involving content-neutral laws, likely message attribution is necessary to establish an infringement. Turner, however, involved a content-neutral law in which attribution was not likely and yet an infringement was found. The majority in Turner viewed the likelihood of message attribution as an element of the inquiry to determine the appropriate level of First Amendment scrutiny to apply. 51 Even this narrower conclusion appears overbroad.

Unlike the must carry provision at issue in Turner, which directly targeted speech, Hurley and Rumsfeld dealt with conduct regulations that incidentally implicated speech. 52 The difference in infringement findings in these incidentally compelled speech cases is the result of differences in the likelihood of message attribution. Both cases involved conduct regulations requiring that equal access be provided to certain protected groups. Enforcement of the public accommodation law in Hurley infringed the First Amendment because observers would likely attribute the decision to include GLIB to the private parade organizers. 53 Conversely, the speech of the military recruiters in FAIR would not be attributed to the law schools because law students are capable of distinguishing between speech the school “sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.” 54 Which infringement analysis will prove more robust will have to await future cases, but the Court’s concern for message attribution is readily apparent. The third conclusion, therefore, is that when compelled speech is incidental to a regulation of conduct, a likelihood of misattribution is necessary to find a compelled speech infringement. 55

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The third conclusion brings us full circle. Public accommodation laws do not mandate specific government messages; they merely require the nondiscriminatory provision of goods and services. They are equal access laws, content-neutral conduct regulations that incidentally compel speech. In these circumstances, the likelihood that the message conveyed would be attributed to the business determines if a constitutional infringement is present. Consequently, the bakers, florists, and photographers that refuse to provide equal access on First Amendment grounds must convince the Court that message attribution is likely to maintain viable compelled speech claims.

Notes:

  1. Jesse Klinger is a 3L at New York University School of Law. The following article reflects the author’s thoughts after participating in the 2016 Seigenthaler Sutherland Cup National First Amendment Moot Court Competition. The competition raised questions of the constitutionality of enforcing public accommodation laws in circumstances in which a photography business owned by an atheist refused to photograph religious events. The photography company alleged that enforcing the law in such circumstances violated the First Amendment under the compelled speech, association, free exercise, and establishment clause doctrines.
  2. See Will the New Mexico Photography Case Blow Up Anti Discrimination Law, Nat’l Const. Ctr, (March 24, 2014), http://blog.constitutioncenter.org/2014/03/podcast-will-the-new-mexico-photography-case-blow-up-anti-discrimination-laws/ (uncovering agreement between Professor Michael Dorf, from Cornell Law School, and Professor Richard Epstein, from New York University School of Law, that granting free speech exceptions could lead to de facto constitutional invalidation of public accommodation laws).
  3. See Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1233 (2014) (“By withdrawing from the vulnerable ground of property and contract to the more politically congenial ground of the First Amendment–and by directing their objections, in the first instance, at laws that do not focus on race discrimination–libertarian skeptics have put themselves in a position to threaten even the core applications of public accommodations laws.”).
  4. Business owners that provide a variety of wedding related goods and services have advanced this argument, see, e.g., Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015) (cakes), Elane Photography v. Willock, 309 P.3d 53 (N.M. Sup. Ct. 2012) (photographs), State v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. 2017) (flowers). Some businesses also argue that their First Amendment rights to freedom of association and religious exercise are similarly infringed, but this article deals exclusively with the compelled speech claim.
  5. U.S. Const. amend. I.
  6. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (“‘Since all speech inherently involves choices of what to say and what to leave unsaid,’ one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’” (quoting Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 11 (1986) (emphasis original)).  
  7. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”); Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.” (citations omitted)); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633–34 (1943).
  8. Brief for Petitioner at 24, Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. Sup. Ct. 2012) (No. 33,687).
  9. If the animating concern behind the compelled-speech doctrine is exclusively autonomy-based, it arguably ought not matter whether an individual agrees with the message attributed to her. Respect for autonomy does not permit the government to compel a person to speak a message with which she agrees, just as it does not permit the government to compel a person to speak a message with which she disagrees. Misattribution occurs when a message is attributed to someone who did not desire to express that message, regardless of whether the desire originates in disagreement with timing, tone, or content. Nevertheless, the Court has expressed particular concern for misattribution due to viewpoint and content disagreements. See, e.g., Hurley, 515 U.S. at 573 (describing the fundamental rule of protection under the First Amendment as “a speaker has the autonomy to chose the content of his own message.” (emphasis added)); Pac. Gas, 475 U.S. at 12 (“Notably absent from PruneYard was any concern that access to this area might affect the shopping center owner’s exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets . . .” (emphasis added)). But autonomy is not so limited and neither ought be its protection. See, e.g., Forum for Acad. & Institutional Rights, 547 U.S. at 62 (“[C]ompelled statements of fact (‘The U.S. Army recruiter will meet interested students in Room 123 at 11 a.m.’), like compelled statements of opinion, are subject to First Amendment scrutiny.”).

  10. Infringement is used to indicate that First Amendment rights are implicated and, as a result, some form of First Amendment review will be applied. This is essentially a coverage question. See Robert Post, RFRA and First Amendment Freedom of Expression, Yale L.J. Forum (March 16, 2016), http://www.yalelawjournal.org/forum/rfra-and-first-amendment-freedom-of-expression (“At the outset, we should distinguish First Amendment coverage from First Amendment protection. First Amendment coverage exists whenever the constitutionality of a government action must be determined by the distinctive doctrinal tests of First Amendment jurisprudence. First Amendment protection, by contrast, refers to whether these doctrinal tests permit or invalidate that government action. It is quite common for a statute to trigger First Amendment coverage and yet to survive constitutional scrutiny. Most forms of government action, however, do not raise questions of First Amendment validity, and consequently their constitutionality is not determined by the application of doctrines specific to First Amendment jurisprudence. With regard to such actions, there is no First Amendment coverage.” (emphasis in original)).
  11. Hurley, 515 U.S. at 577 (finding enforcement of Massachusetts’ public accommodation law unconstitutional “[w]ithout deciding on the precise significance of the likelihood of misattribution.”).
  12. See Forum for Acad. & Institutional Rights, 547 U.S. at 63 (“Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message.”); Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451, 463 (1995) (“There are two categories of cases here, first, cases in which the government compels speakers to utter or foster the government’s own message, and second, cases in which the government compels speakers to foster a private party’s message.”).
  13. 319 U.S. 624 (1943).
  14. 430 U.S. 705 (1977).
  15. Barnette, 319 U.S. at 642.
  16. Id.
  17. Id. at 633.
  18. See id. at 634 (“To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”). The dissent emphasized that the ability to disclaim association of the message was not hindered by the resolution. For the dissent, the ability to disclaim message attribution was outcome determinative. See Barnette, 320 U.S. at 664 (Frankfurter, J., dissenting) (“It is not even remotely suggested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to disavow as publicly as they choose to do so the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution.”).
  19. Wooley, 430 U.S. at 707.
  20. Id. at 715 (quoting Barnette, 329 U.S. at 642).
  21. Wooley, 430 U.S. at 717 n.15.
  22. Echoing the sentiments of the Barnette dissent, the Wooley dissenters argued that message attribution was necessary to a finding that compelled speech infringed the First Amendment. Id. at 721 (Rehnquist, J., dissenting) (“For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently to, or actually ‘asserting as true’ the message. This was the focus of Barnette, and clearly distinguishes this case from that one.”) Emphasizing that the license plates are issued in a format “known to all as having been prescribed by the State,” the dissent doubted whether drivers “would be considered to be advocating” the views expressed by the motto. Id. at 720-21. Even if there were some implication that they agreed with the motto, the dissent contended that it could be easily displaced by a “conspicuous bumper sticker explaining in no uncertain terms that they . . . violently disagree with the . . . motto.” Id. at 722.
  23. 447 U.S. 74 (1980).
  24. The unrelated distinction was that no specific government message was required in PruneYard, which in the Court’s view eliminated the danger of government favoritism towards particular messages. See id. at 87 (“[N]o specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message.”). That distinction reflects the division in this article between “government message” and “third-party message” cases.
  25. Id. (“Most important, the shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner.”).
  26. Id.
  27. Id. at 88. Prior to PruneYard, the Court evaluated the constitutionality of a right-to-reply statute in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Like PruneYard, Tornillo involved compelled expression of a third-party’s speech, not a mandated government message. The Court was troubled that the right-to-reply statute functioned as a speech penalty. If a newspaper published speech that criticized a candidate, the statute could be invoked to force a newspaper to expend time and other resources publishing counter-speech. This penalty might cause editors to “conclude that the safe course is to avoid controversy.” Id. at 257. The concern for newspapers avoiding controversy was tied to a concern for reduced “political and electoral coverage” that would “inescapably ‘dampen[] the vigor . . . of public debate.’” Id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)). The potential dampening of public debate and the right-of-reply statute’s “intrusion into the function of editors” were at the heart of the Court’s decision since the government cannot interfere with an editor’s choice of content while staying “consistent with First Amendment guarantees of a free press as they have evolved to this time.” Id. at 258 (emphasis added). Although Tornillo struck down a compelled speech violation arguably absent any likelihood of misattribution, the reasoning relied on the free press clause and concern for editorial control, not individual autonomy. Accordingly, its impact outside the news business, if any, is uncertain. Compare PruneYard, 447 U.S. at 88 (“[Tornillo] rests on the principle that the State cannot tell a newspaper what it must print . . . . Thus, the statute was found to be an ‘intrusion into the function of editors.’ These concerns are obviously not present here.” (quoting Tornillo, 418 U.S. at 257)); with Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 11 (1986) (“The concerns that caused us to invalidate the compelled access rule in Tornillo apply to appellant as well as to the institutional press.”).
  28. 475 U.S. 1 (1986).
  29. 512 U.S. 622 (1994).
  30. Pac. Gas, 475 U.S. at 4. Interestingly, the Court invoked the reasoning of a “marketplace of ideas” to extend compelled speech protections to corporations. See id. at 16 (“The constitutional guarantee of free speech serves significant societal interests wholly apart from the speaker’s interest in self-expression. By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information.”) (internal quotation marks and citations omitted)).
  31. See id. at 12 n.8 (reasoning that, unlike PruneYard, “[t]here is no correspondingly public aspect to appellant’s billing envelopes.”). The Court suggested in a footnote that the availability of disclaimers is not sufficient to eliminate “the impermissible pressure on appellant to respond” to third-party statements even if disclaimers would successfully avoid any message attribution. Id. at 15 n.11.
  32. Turner, 512 U.S. at 655 (“Given cable’s long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator. Indeed, broadcasters are required by federal regulation to identify themselves at least once every hour, 47 CFR § 73.1201 (1993), and it is a common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility.” (citing PruneYard, 447 U.S. at 87)).
  33. Id.
  34. 515 U.S. 557 (1995).
  35. Id. at 573 (“[T]his use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”).
  36. Id. at 575. This was unlike the cable operators at issue in Turner who faced little risk that viewers would attribute the ideas of the broadcast station with the operator. See supra note 32.
  37. Id. at 576 (“Parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed. Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow ‘any identity of viewpoint’ between themselves and the selected participants.” (quoting PruneYard, 447 U.S. at 87)).
  38. Id. at 580 (“[W]e found in that case that the proprietors were running ‘a business establishment that is open to the public to come and go as they please,’ that the solicitations would ‘not likely be identified with those of the owner,’ and that the proprietors could ‘expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand.’” (quoting PruneYard, 447 U.S. at 87)).
  39. 547 U.S. 47 (2006).
  40. See id. at 65 (“[In PruneYard,] [w]e explained that there was little likelihood that the views of those engaging in expressive activities would be identified with the owner, who remained free to disassociate himself from those views . . . . The same is true here.”).
  41. Id.
  42. Id. (citing Bd. of Ed. of Westside Cmty. Schools (Dist.66) v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion)).
  43. Id. at 62.  
  44.  See supra notes 18, 22.
  45. Compare Elane Photography, LLC v. Willock, 309 P.3d 53, 64 (N.M. Sup. Ct. 2013) (“Elane Photography reads Wooley and Barnette to mean that the government may not compel people ‘to engage in unwanted expression.’ However, the cases themselves are narrower than Elane Photography suggests; they involve situations in which the speakers were compelled to publicly ‘speak the government’s message.’” (quoting Forum for Acad. & Institutional Rights, 547 U.S. at 63)) with Brief for Cato Institute et al. as Amici Curiae at 3, Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. Sup. Ct. 2012) (No. 33,687) [hereinafter Cato Brief] (“This case is largely controlled by a United States Supreme Court precedent that the court of appeals never mentioned: Wooley v. Maynard, 430 U.S. 705 (1977).”).
  46. See Cato Brief at 5 (“Of course, no observer would have understood the motto — printed by the government on a government-provided and government mandated license plate — as the driver’s own words or the driver’s own sentiments. Yet the Court nonetheless held for the Maynards.”); Id. at 19 (“The Wooley majority concluded that the Maynards should prevail, even though observers likely would not assume that the Maynards endorsed the license plate motto. Likewise, Huguenin should prevail regardless of whether observers would assume that her participation endorsed the same-sex ceremony.”).
  47. See supra text accompanying note 25.
  48. See supra note 24. Presumably, absent the concern for government favoritism, some other concern must be present to trigger a First Amendment infringement – like a concern for misattribution.  
  49. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 655 (1994) (“Tornillo and Pacific Gas & Electric do not control this case for the following reasons. First, unlike the access rules struck down in those cases, the must-carry rules are content neutral in application. They are not activated by any particular message spoken by cable operators and thus exact no content-based penalty.”). See also Brief of Steven H. Shiffrin & Michael C. Dorf at 31, Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. Sup. Ct. 2012) (No. 33,687) (“Unlike Tornillo where government engaged in content discrimination by triggering a forced response based on its criticism of political candidates, imposing a penalty for that criticism, and interfering with the speech with which the newspaper was engaged, the [public accommodation law] does not engage in content discrimination . . . . Unlike Pacific Gas where government engaged in content discrimination by forcing it to include contrary messages in its billing enveloped and forced the utility to be a courier of the message of a government selected speaker with which it disagreed, the [public accommodation law] is content-neutral . . . .”).
  50. For purposes of the example, assume observers know the bumper stickers are required by law.
  51. In Turner, the Court suggested that strict scrutiny would be appropriate if message attribution was likely. See, Turner, 512 U.S. at 653-56.  
  52. See Forum for Acad. & Institutional Rights, 547 U.S. at 62 (“This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. . . . The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and ‘it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’” (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).
  53. See supra text accompanying note 36.
  54. Forum for Acad. & Institutional Rights, 547 U.S. at 65.
  55. The New Mexico Supreme Court reached a similar conclusion, but did not account for Turner. See Elane Photography, LLC v. Willock, 309 P.3d 53, 69 (N.M. Sup. Ct. 2013) (“In contrast to Pacific Gas and Tornillo, the United States Supreme Court has not found compelled speech violations where the government has not explicitly required a publisher to disseminate opposing points of view and where observers are unlikely to mistake a person’s compliance with the law for endorsement of third-party messages, as in Hurley.” (emphasis in original)).