Thousands of law students around the country are buying their books and heading back to school. Many of them took Constitutional Law during their first year. Few learned much, if anything, about the First Amendment.
In law school, a course on the First Amendment is usually offered as an upper-class elective. But that presents another problem. Even top-notch law professors have trouble cramming all there is to know about the First Amendment in one semester.
Take, for example, Jack Balkin of Yale Law School. Balkin’s First Amendment class covers a variety of areas, from the Establishment Clause to the Free Exercise Clause, from freedom of association to the campaign finance cases.
Under this approach, students are exposed to a wide range of First Amendment topics. The flip side, though, is that most First Amendment courses gloss over (or ignore) important topics such as compelled speech.
Yet the compelled speech doctrine will be relevant in some of the most important First Amendment cases of tomorrow. In a few months, the Supreme Court will decide whether a Colorado law that requires a bakery to bake cakes for same-sex weddings violates the compelled speech doctrine. Next year, laws that mandate GMO labels on food packaging and calorie counts on restaurant menus will go into effect, raising the prospect of additional compelled speech cases.
Law schools should take note of this trend, and offer compelled speech as a stand-alone course. Here’s how I’d structure it:
The first part of the course should go over the traditional compelled speech cases. The Supreme Court case that invalidated a law requiring public schoolchildren to salute the flag would be a good start. Another important Supreme Court decision held that New Hampshire could not require its citizens to display the state motto (“Live Free or Die”) on their license plates.
Part II should then discuss the commercial speech doctrine with cases like Central Hudson. Under that doctrine, courts grant less protection to speech about goods and services for sale. Central Hudson didn’t have much to do with compelled speech, but the case will help students understand why some courts have been reluctant to invalidate mandatory labeling laws.
Finally, Part III should focus on what commentators have called the compelled commercial speech doctrine. This section should cover the Supreme Court’s decision in Zauderer and the D.C. Circuit’s decision upholding a country-of-origin labeling requirement. Students will likely be surprised to learn that courts have diluted First Amendment protections even further when it comes to compelled commercial speech.
If there were ever a time for a course on compelled speech, now would be it. Many law schools already teach the First Amendment. They should teach the compelled speech doctrine too.