The First Amendment protects speech, and it protects speakers from compelled speech. Generally, you can't be forced to say or sign anything – a prayer, the Pledge of Allegiance, a loyalty oath, that goes against your deeply held beliefs. But all speech protections are contingent: just as some speech has no constitutional protection, governments and in some cases, employers, may compel certain types of speech. Laws may dictate the content of product labels or other aspects of advertising; employers may require workers to follow scripts or repeat certain formulas; some loyalty oaths may be required; and federal law requires English as the language of air traffic control. We look at three examples of compelled speech in this chapter: the presidential oath of office, prescribed in the US Constitution; the Miranda warning, the caution that police must give to anyone under arrest before they may question them. And statutes that define their own words. Such definitions require us to accept a particular meaning and reject alternatives, and as such, they constitute compelled speech. We see the problems that ensued when the US government enacted a law defining "marriage" as the "union of one man and one woman," a law that was ultimately ruled unconstitution by the US Supreme Court in Windsor v. US.

Usually, free speech issues arise in the context of governmental suppression of expression. However, the Supreme Court has long recognized that the values fostered by the free expression guarantee may be equally undermined by the compulsion of expression. While certain exceptions exist, it is well established constitutional doctrine that in the context of noncommercial speech, compelled expression is for the most part unconstitutional. The situation is far more confused, however, in the context of compelled commercial speech. Several decisions of the Court have sent frustratingly mixed signals on the subject, leaving the area woefully uncertain. This chapter argues that the equivalency principle, which this book argues throughout should apply to measure the constitutionality of the suppression of commercial speech, applies with just as much force to compelled commercial expression. The chapter reaches this conclusion by applying the four-perspective framework developed in Chapter 1. But as is the case in other applications of the equivalency principle, it does not necessarily follow that compelled commercial speech will be invalidated in every instance in which comparable noncommercial speech would be invalidated. To be sure, he First Amendment value of the two forms of speech must be deemed identical. But by their very nature, certain forms of commercial speech give rise to a far greater degree of confusion or harm, and as a result in these relatively narrow circumstances, compelled commercial speech will be constitutionally appropriate where comparable compelled noncommercial speech will not. The categorical reach of these exceptions is determined by application of the taxonomy of harms, developed first in Chapter 2.

Some courts don’t recognize a right to silence during Terry stops. It’s legal now in some jurisdictions for police to arrest individuals for refusing to answer their questions. That’s court-approved retaliatory arrest. While the law governing pre-Miranda silence remains murky, the reality is clear: the teenagers we train can’t successfully invoke their right to silence during a stop-and-frisk without risking retaliation (whether legal or illegal). Court-sanctioned lies compound the difficulty in navigating police stops. When I train teenagers, my law students and I tell them that police are allowed to lie during Terry stops and at the police station. This fact confuses the teenagers we train. “If the officers will lie and say that I consent, why should I bother telling the officer that I don’t consent to searches?” Why learn one’s rights at all? As one teen put it, “The cop will just say I waived my rights no matter what I do.” Terry v. Ohio justified stop-and-frisk on the basis that police would use these stops to gather “voluntary” statements. But statements are not “voluntary” when made under threat. Once we acknowledge this, we see that Terry was built on a lie.

This essay addresses those aspects of the anti-union argument that focus exclusively on the public sector. First, the claim that the public sector is different than the private sector and whatever reasons we may have to support unionization in the latter do not apply in the former. Second, the claim that public sector unionization increases the size of government, yet government is already far too big. Third, the claim that because public employees provide essential services, public sector unions can extort excessive salaries and benefits out of government. Fourth, the claim that public sector unionization undermines democracy, for it gives public employees undue influence in the electoral process. Fifth, the claim that regardless of whether unionization of the public sector is good for public employees, it is bankrupting the rest of us. And finally, the claim that even if public sector unionization is permissible, workers must be free to refuse to join, and forcing those who do not join to pay dues in any form would be an unconstitutional form of compelled speech. In response, I show that each of these claims are wrong not only on the facts but more importantly on the underlying moral claims they invoke.