Amy J. Sepinwall (University of Pennsylvania – Legal Studies Department) has posted Complicity in Compelled Speech (Philosophical Topics, forthcoming) on SSRN. Here is the abstract:
We typically think of the right to free speech as a right to say what we would like. In fact, though, the right also protects individuals from saying what they would rather not. Indeed, the law often considers state-compelled speech to be an even worse affront than government censorship. But why?
Philosophers have argued that compelled speech threatens to use individuals as government mouthpieces; to misrepresent the speaker’s convictions; or to interfere with the compelled speaker’s deliberative processes. Notwithstanding their differences, all of these explanations identify the compelled speaker as the victim of the wrong of compelling speech. But, I show, speaker-based explanations are at best incomplete and sometimes overblown.
I offer a listener-based account. Borrowing from Jean-Paul Sartre, I argue that, because what one says conveys what one would will others to believe, compelled speech renders the speaker complicit in misleading their audience. While I believe this account best explains what is wrong with compelled speech, I go on to argue that the wrong so-conceived is easily—and correctly—defeated by many cases of state-compelled speech. I focus in particular on school board policies that require teachers to call students by the students’ preferred pronouns, and I argue that these policies should be upheld notwithstanding some teachers’ conscientious objections to this instance of compelled speech.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum