Also known as: rights not to speak · right against compelled speech
Written by attorneys — see sources below.
A First Amendment safeguard against governmental compulsion to affirm or convey a particular message or belief. The protection bars the state from forcing individuals or private organizations to voice or host ideological, patriotic, or expressive content they reject.
Royal Crest Hotels organizes a private parade celebrating local business success along city streets. When the city threatens to revoke the permit unless the hotel includes a float criticizing corporate practices, the hotel refuses. A court upholds the refusal because the government cannot force the organizer to host an unwanted message within its own expressive event.
Ruby Rivera attends a public high school that requires every student to recite a pledge praising current national leaders by name. Rivera stands silently and is suspended. A court invalidates the suspension because the state cannot compel students to voice a government-drafted patriotic message.
Rising Sun Electronics is ordered by state law to affix a government-drafted warning on every product label. The company refuses and sues. A court holds that the mandate compels the brewer to convey an ideological message it rejects, violating the right not to speak.
Soon after ratification of the Twenty-first Amendment, Congress enacted the Federal Alcohol Administration Act, which established national rules governing the distribution, production, and importation of alcohol and created a Federal Alcohol Administration to implement those rules. In 1987, Coors Brewing Company applied to the Bureau of Alcohol, Tobacco and Firearms for approval of proposed labels and advertisements disclosing the alcohol content of its beer. The BATF rejected the application because section 5(e)(2) of the Act prohibits statements of alcoholic content on malt beverage labels and in advertising unless required by state law. Coors filed suit in the United States District Court for the District of Colorado seeking a declaratory judgment that the provisions of the Act prohibiting disclosure of alcohol content on beer labels violated the First Amendment, and injunctive relief barring their enforcement. The Government maintained that the ban was necessary to suppress strength wars among brewers who would otherwise compete on the basis of potency. The District Court granted the relief sought. A panel of the Tenth Circuit reversed and remanded for further proceedings to determine whether a reasonable fit existed between the ban and the goal of avoiding strength wars. After additional factfinding, the District Court upheld the ban as applied to advertising but invalidated it as applied to labels. Coors did not appeal the advertising ruling, but the Government appealed the invalidation of the labeling prohibition. On the second appeal, the Tenth Circuit affirmed the District Court's decision striking down the labeling ban. The Supreme Court granted certiorari to review the Tenth Circuit's determination that the prohibition violates the First Amendment. Implementing regulations promulgated by the BATF prohibit numerical indications of alcohol content on beer labels as well as descriptive terms suggesting high content such as strong, full strength, extra strength, high test, high proof, pre-war strength, and full old time alcoholic strength. The regulations permit labels identifying a beer as low alcohol, reduced alcohol, non-alcoholic, or alcohol-free. By statute and regulation, the labeling ban yields if state law requires disclosure of alcohol content. Federal regulations apply a contrary policy to beer advertising, prohibiting statements of alcohol content only in states that affirmatively prohibit such advertisements, and only eighteen states at most impose that prohibition. The Act requires disclosure of alcohol content on labels of wines containing more than fourteen percent alcohol by volume and permits such statements on distilled spirits labels.
View caseRhapsody Entertainment objects to paying assessments that fund government-drafted promotional messages about its industry. The company argues the program forces it to subsidize speech it rejects. A court examines whether the assessments constitute compelled speech under the First Amendment.
The Beef Promotion and Research Act of 1985 directed the Secretary of Agriculture to issue a beef promotion order that established a Cattlemen's Beef Promotion and Research Board with members appointed by the Secretary from nominations by the cattle industry. The Act also required the creation of an Operating Committee with ten Board members and ten representatives from a federation of state beef councils. It authorized a one-dollar-per-head assessment on cattle sales and imports to fund promotion, research, and consumer information projects. Pursuant to the Act, the Secretary issued the Beef Promotion and Research Order in 1986. Under the Order the assessment is collected mainly by state beef councils that forward the proceeds to the Board for use in developing promotional campaigns subject to the Secretary's approval. In 1988 beef producers voted in a referendum to make the order permanent. After that vote the program collected more than one billion dollars. In fiscal year 2000 alone the Board collected over forty-eight million dollars in assessments and spent more than twenty-nine million dollars on domestic promotion featuring the slogan Beef. It's What's for Dinner. Many of the promotional messages bore the attribution Funded by America's Beef Producers along with a Beef Board logo. The Secretary appoints and can remove Board members. He approves all budgets and advertising content. He holds authority to terminate the entire program if it is not in the public interest. Respondents include two associations whose members pay the assessments and several individual cattle producers who raise and sell cattle subject to the checkoff. They initiated litigation in Federal District Court against the Secretary, the Department of Agriculture, and the Board. They later amended their complaint to assert a First Amendment challenge to the compelled funding of promotional activities after the Supreme Court's decision in United States v. United Foods, Inc. The District Court held a bench trial and ruled in favor of respondents on the First Amendment claim. It entered a permanent injunction against further collection of the mandatory checkoff. The Court of Appeals for the Eighth Circuit affirmed the District Court's judgment on the First Amendment issue. The Supreme Court granted certiorari to consider the case.
View caseRaphael Rivera is arrested and told he may remain silent during custodial questioning. He declines to answer and is later prosecuted. The court holds that the government cannot penalize the exercise of the right to withhold statements that could be used against him.
In March 1963 Ernesto Miranda was arrested at his home in Phoenix and taken to the police station where he was identified by the complaining witness. He was then questioned by two officers in Interrogation Room No. 2 for two hours. The officers did not advise him of any right to counsel. Miranda signed a typed confession that was introduced at his trial for kidnapping and rape. On October 14 1960 Michael Vignera was arrested in connection with a Brooklyn robbery. He was taken first to the 17th Detective Squad headquarters in Manhattan and later to the 66th Detective Squad. A detective questioned him for several hours without any advice concerning counsel. Vignera made an oral admission. He was then questioned by an assistant district attorney whose transcribed statement was also introduced at his trial for first-degree robbery. On March 20 1963 Carl Calvin Westover was arrested by Kansas City police as a suspect in two local robberies. Kansas City police interrogated Westover on the night of his arrest. The next day local officers interrogated him again throughout the morning. Westover was then turned over to FBI agents who questioned him for two to two-and-a-half hours about California robberies and obtained signed confessions. At the time the FBI agents began questioning Westover he had been in custody for over fourteen hours. On January 31 1963 Roy Allen Stewart was arrested at his home in connection with a series of purse-snatch robberies. During the next five days police interrogated Stewart on nine different occasions without any advice of rights. On the ninth session Stewart confessed. Transcripts of the interrogations were introduced at his trial for kidnapping rape and murder. The Arizona Supreme Court affirmed Miranda's conviction. The New York courts affirmed Vignera's conviction. The Ninth Circuit affirmed Westover's conviction. The California Supreme Court reversed Stewart's conviction. The Supreme Court granted certiorari in the four cases and consolidated them for argument.
View caseRadiance Media holds copyright in an unpublished manuscript. A magazine publishes a lengthy excerpt without permission. The publisher sues and prevails because the First Amendment does not require an author to surrender control over the first public appearance of its own expression.
In February 1977, shortly after leaving the White House, former President Gerald R. Ford contracted with Harper & Row Publishers, Inc., and Reader's Digest Association, Inc., to publish his memoirs. The agreement provided Harper & Row and Reader's Digest the exclusive right to license prepublication excerpts known as first serial rights. Harper & Row paid Ford $25,000 upon signing and another $25,000 upon delivery of the manuscript, while the Government supplied $25,000 for researchers plus staff and access to White House files and tapes. The completed 460-page manuscript included roughly 200 pages on Ford's decision to pardon Richard Nixon. In late 1978, Victor Navasky, editor of The Nation, learned from an undisclosed source that the manuscript was in California. The source, described as a former Ford aide, supplied a copy to The Nation for $5,000. Navasky prepared a 2,250-word article titled "The Ford Memoirs — Behind the Nixon Pardon" that appeared in the April 3, 1979, issue. The article contained approximately 300 words of verbatim quotations from the manuscript, focused on the Nixon pardon chapters, and was published on the eve of the scheduled Time magazine serialization. Harper & Row had separately licensed first serial rights to Time magazine for $25,000, with $12,500 paid in advance and the balance due upon publication of a 7,500-word excerpt timed for one week before the hardcover book release. Time retained the right to renegotiate the second payment if any material appeared earlier. After The Nation article ran, Time canceled the remaining payment and the serialization. Harper & Row and Reader's Digest then sued Nation Enterprises in the United States District Court for the Southern District of New York, alleging copyright infringement among other claims. Following a six-day bench trial, the district court found that the Ford manuscript was protected by copyright at the time of The Nation's publication and that the use of the material was not fair use. The court awarded Harper & Row $12,500 in actual damages. A divided panel of the Court of Appeals for the Second Circuit reversed, holding that The Nation's use qualified as fair use. The Supreme Court granted certiorari.
View caseYes. Public schools are government actors and may not compel students to recite pledges or voice patriotic or political messages they reject. Suspensions or other penalties for refusal violate the First Amendment.
No. A privately organized parade is expressive activity. The government may not condition a permit on the organizer's willingness to host a message it rejects.
Yes. The First Amendment protects the right not to speak in commercial contexts as well. The government may not require truthful speakers to suppress accurate information or subsidize messages they oppose without sufficient justification.