Robert Post (Yale Law School) has posted NIFLA and the Construction of Compelled Speech Doctrine (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:
First Amendment doctrine disfavoring compelled speech originated in 1943 in the classic case of West Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine has culminated in National Institute of Family & Life Advocates [“NIFLA”] v. Becerra in the assertion that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.
Using examples ranging from professional malpractice to compulsory tax returns, this article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are constitutionally disfavored. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context.
Courts must therefore learn to read the geography of our social landscape, and the article offers some hints for how this might be done. Applying these insights to NIFLA, the article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. If constitutional decisions like NIFLA are to be made persuasive, such suppositions must be made explicit and justified.
Highly recommended.