Friday, June 17, 2022
David S. Han, Pepperdine University School of Law, has published Compelled Speech and Doctrinal Fluidity at 97 Indiana Law Journal 841 (2022). Here is the abstract.
Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness—a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of disparate results. After examining some recent examples of this doctrinal fluidity and identifying its origins, the Essay observes that a true fix to this problem—the development of a fully coherent and stable compelled speech doctrine—is highly unlikely to emerge under the current state of affairs, given the intractable nature of the sources of this fluidity and the Court’s case-by-case, winner-take-all culture of constitutional adjudication. This Essay therefore argues for a shift in the Supreme Court’s approach to compelled speech doctrine—one that eschews formal complexity in favor of more open-ended, analytically transparent approaches. This proposal is, in essence, a second-best solution. If it is unrealistic to expect that an elegant, fully unified, and consistent doctrinal framework will emerge anytime soon, the Court should, at the very least, avoid obscuring its decisions behind complex and malleable formal doctrines and instead analyze cases in a manner that lays bare the fundamental intuitions and value judgments actually driving its decisions. A useful point of comparison might be to common law courts’ approach to negligence doctrine—an approach that is anchored in a simple, open-ended analysis that forces courts to bring to the fore the fundamental values underlying the doctrine. Such an approach would at least allow courts—and society at large—to discuss and debate these fundamental values openly rather than through a nebulous doctrinal façade that may ultimately serve merely to obscure the contested judgments and intuitions actually driving the results.
Download the article from SSRN at the link.