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The Law of Compelled Speech

Volokh, Eugene

Texas Law Review, 2018, Vol.97(2), pp.355-395 [Periódico revisado por pares]

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  • Título:
    The Law of Compelled Speech
  • Autor: Volokh, Eugene
  • Assuntos: Freedom of Speech – Laws, Regulations and Rules ; Exceptions (Law) – Laws, Regulations and Rules ; Presumptions (Law) – Laws, Regulations and Rules ; Strict Scrutiny Doctrine – Analysis ; Precedents (Law) – Laws, Regulations and Rules
  • É parte de: Texas Law Review, 2018, Vol.97(2), pp.355-395
  • Descrição: The very first state statute struck down on free speech grounds-in 1894, by the Georgia Supreme Court-was a "service letter" statute under which employers were obligated to give dismissed employees a letter explaining the reason for the dismissal.4 "Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence," held the court.5 And the doctrine remains strong today: just this last Term, it was powerfully reaffirmed in Janus v. American Federation of State, County & Municipal Employees, Council 31 (AFSCME)6 and National Institute of Family & Life Advocates (NIFLA) v. Becerra1 and was relied on by Justice Thomas in his concurrence (joined by Justice Gorsuch) in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.8 Yet, however emphatically stated and deeply rooted the broad principle may be, its details are often hard to pin down.9 For instance: 1. NIFLA held that the government can't require pregnancy crisis centers to inform patients about the availability of low-cost abortions.17 But Planned Parenthood of Southeastern Pennsylvania v. Casey18 held that the government can require doctors who perform abortions to "inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the 'probable gestational age of the unborn child. The plurality in Pacific Gas & Electric Co. v. Public Utilities Commission of California20 suggested that requiring someone to distribute another's speech may be unconstitutional when it pressures the distributor to respond to that speech.21 Yet that pressure was likely present in FAIR, and still the Court upheld the compelled hosting in that case.22 And, partly because of these internal tensions, the doctrine contains major uncertainties: 5. Key precedents: * Miami Herald Publishing Co. v. Tornillo30 (newspapers required to publish replies to criticisms of candidates). * Pacific Gas & Electric Co. v. Public Utilities Commission of California (utilities required to carry materials written by groups that disagree with the utilities' positions). * Turner Broadcasting System, Inc. v. FCC (characterizing Miami Herald).
  • Idioma: Inglês

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