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)).