This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection against being compelled financially to support private speech and the First Amendment commitment to the dissemination of the maximum amount of individual expression.
The model shows how to resolve First Amendment challenges to the use of government compelled funding of public forums-including streets and parks, public University student activities fee programs, and the National Endowment for the Arts-when those forums are used by objectionable speakers or for offensive speech. The key is that the payer is not compelled to fund any objectionable speech or speaker The payer funds only the public forum, the physical place and services associated with that place or the pool of money in the subsidy program, none of which is expressive. Under this model, all compelled-expression challenges to the establishment and funding of public forums must fail.
Howard M. Wasserman,
Compelled Expression and the Public Forum Doctrine
, 77 Tul. L. Rev. 163
Available at: https://ecollections.law.fiu.edu/faculty_publications/74