Imagine: Congress enacts two laws to tilt the next election in favor of Joe Smith. The first law forbids voters from speaking poorly of Smith. Typical censorship, and neither you nor a court would hesitate to say that the law violates the First Amendment.
Now consider a second law. This law doesn’t prevent voters from saying anything. Instead, it requires voters to express their support for Smith by placing a “Vote for Smith” sign in their front yard. Does this second law threaten your right to free speech, just as much as law number one?
You might think the answer is obvious: Laws that compel speech are just as wrong as those that censor speech. In the Supreme Court’s words, the right to speak and the right to remain silent are “complementary components” of individual freedom.
Yet the rest of the judiciary has not been so vigilant in protecting the right to remain silent. According to some, judges should only afford meaningful review to laws that restrict speech. Laws that compel speech are instead evaluated under a standard that allows judges to close their eyes and think of any reason they can to uphold the law.
With the First Amendment out of the way, Congress has enacted several laws that compel speech for no good reason. One law requires restaurants to post calorie counts on menus even though menu labeling doesn’t change what consumers order. Another requires GMO labeling, even though there is broad scientific consensus that genetic engineering doesn’t create any unique risk for human health.
Against these dubious benefits, compelled speech laws usually produce enormous costs for businesses and their consumers. Mandatory menu labeling laws require restaurants to send their food to lab for nutritional testing and reprint their menu every time they wish to offer consumers something new. All told, that’s thousands of dollars per business in wasteful spending.
Good news is on the horizon. There has been plenty of pushback against compelled speech in recent years. And jabs against compelled speech laws have come from all corners of the political spectrum. One from a libertarian judge who called a decision upholding a compelled speech law “delirium on a pogo stick.” Another from a progressive commentator who pointed out that menu labeling laws just don’t make sense.
The First Amendment is gaining momentum; compelled speech laws are losing ground. If this trend persists, the next big free speech victory might be one that restores your right not to say anything at all.