NIFLA and the Construction of Compelled Speech Doctrine

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, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds 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 equally disfavored under the Constitution.

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 learn to read the constitutional geography implicit in distinct social landscapes. This 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.

Constitutional decisions like NIFLA can be made persuasive only if such suppositions are made explicit and justified.