...though all compelled speech derives from the negative speech right, that right lends itself to two distinct models representing two distinct approaches to compelled speech: compelled speech production and compelled speech restriction.
A. Compelled Speech Production
Intuitively, the right to free speech necessarily implicates the right to choose what not to say. The characteristic element of this negative speech right model is a compelled movement from silence to speech. A prohibition occurs as a function of the government regulation, but it is a prohibition on silence.
...The original compelled speech cases follow the speech production model of the negative speech right. West Virginia State Board of Education v. Barnette,22×22. 319 U.S. 624 (1943). the original compelled speech case, followed this model: school children had no capacity to opt out of reciting the Pledge of Allegiance and saluting the flag.23×23. Id. at 626. If they could, they would have remained silent at their desks. Instead, the West Virginia regulation required them to enter public discourse, to engage in speech where they otherwise would not have done so.
...It is the right to be able to say what one wishes to say and nothing else. But since every law implicates autonomy to some degree, the Court has been more lenient unless the infringement on speaker autonomy raises additional concerns under the circumstances. The government does have some capacity to compel production of speech expressing a particular viewpoint given its need to take positions on political issues.
...In other circumstances, though, compelled speech production need not trigger maximal constitutional suspicion if the law does not meaningfully infringe on speaker autonomy.
B. Compelled Speech Restriction
The second model of the negative speech right involves compelled speech that restricts speech. The amount of possible speech supported by any given speech medium is often limited. Forcing someone to speak thereby forces the speaker to occupy a portion of a limited speech medium with expression that she would not otherwise have engaged in. The result is that she no longer has the room to say what she otherwise would have used the limited speech medium to say.
...In Tornillo, the Court applied strict scrutiny and invalidated a Florida right-of-reply statute that required newspapers to publish the response of a public figure about whom the newspapers had previously published criticism.42×42. Tornillo, 418 U.S. at 244, 258. In so doing, the Court relied on the notion that the limited nature of the newspaper medium meant that newspapers could publish only so much speech.43×43. Id. at 258. By compelling some speech, the law stopped the newspapers from fully expressing what they wanted to say.
...though all compelled speech derives from the negative speech right, that right lends itself to two distinct models representing two distinct approaches to compelled speech: compelled speech production and compelled speech restriction.
A. Compelled Speech Production
Intuitively, the right to free speech necessarily implicates the right to choose what not to say. The characteristic element of this negative speech right model is a compelled movement from silence to speech. A prohibition occurs as a function of the government regulation, but it is a prohibition on silence.
...The original compelled speech cases follow the speech production model of the negative speech right. West Virginia State Board of Education v. Barnette,22×22. 319 U.S. 624 (1943). the original compelled speech case, followed this model: school children had no capacity to opt out of reciting the Pledge of Allegiance and saluting the flag.23×23. Id. at 626. If they could, they would have remained silent at their desks. Instead, the West Virginia regulation required them to enter public discourse, to engage in speech where they otherwise would not have done so.
...It is the right to be able to say what one wishes to say and nothing else. But since every law implicates autonomy to some degree, the Court has been more lenient unless the infringement on speaker autonomy raises additional concerns under the circumstances. The government does have some capacity to compel production of speech expressing a particular viewpoint given its need to take positions on political issues.
...In other circumstances, though, compelled speech production need not trigger maximal constitutional suspicion if the law does not meaningfully infringe on speaker autonomy.
B. Compelled Speech Restriction
The second model of the negative speech right involves compelled speech that restricts speech. The amount of possible speech supported by any given speech medium is often limited. Forcing someone to speak thereby forces the speaker to occupy a portion of a limited speech medium with expression that she would not otherwise have engaged in. The result is that she no longer has the room to say what she otherwise would have used the limited speech medium to say.
...In Tornillo, the Court applied strict scrutiny and invalidated a Florida right-of-reply statute that required newspapers to publish the response of a public figure about whom the newspapers had previously published criticism.42×42. Tornillo, 418 U.S. at 244, 258. In so doing, the Court relied on the notion that the limited nature of the newspaper medium meant that newspapers could publish only so much speech.43×43. Id. at 258. By compelling some speech, the law stopped the newspapers from fully expressing what they wanted to say.
[0]: https://harvardlawreview.org/2020/05/two-models-of-the-right...