Plenty of ink has been spilled over the threat to free speech from both Left and Right in modern American politics, and for good reason. Donald Trump wants to strengthen libel laws so the press cannot criticize him. Hillary Clinton wants to amend the First Amendment to censor political speech at election times. Both of these and many other assaults on free speech are based on the government telling you, through threat of lawsuit, fines, or jail time, what you may not say.
But an even greater threat to free speech emerges when the government mandates what you must say. Compelled speech is on the rise, and neither Clinton nor Trump is inclined to stop it.
Compelled Speech Exists Already
In some contexts, compelled speech is not a new phenomenon. Until recently, it has been restricted to compelling corporations to speak. In fact, you have almost certainly heard some compelled speech within the last 24 hours.
Have you seen a pharmaceutical advertisement? The disclaimers at the end are not there at the drug companies’ discretion. They are the result of mandated negotiation between the companies and the Food and Drug Administration, resulting in a precise set of words the ads must include to be allowed to run on television, radio, or in any other form of mass media. If the ads don’t say what the government requires, they are forbidden.
Compelled speech creeps into other areas, as well. If you have heard the Democratic presidential nominee’s voice saying “I’m Hillary Clinton and I approve this message,” you are hearing compelled speech in the form of a disclaimer required by the Bipartisan Campaign Reform Act of 2002.
In commercial transactions, too, the federal government often requires certain disclosures. When you see the box in your credit card statement that tells you how long it will take you to pay off your bill if you make only the minimum payment, you are reading speech compelled by the Credit Card Accountability Responsibility and Disclosure Act of 2009.
Most Americans are comfortable with this level of compelled speech. It is restricted to publications from corporations or political campaigns. It covers something complicated, where the ordinary consumer feels himself at a disadvantage.
Most importantly, the speech the government compels is true and relatively uncontroversial. It does not compromise political candidates’ morality for them to own up to ads their campaigns produce. It does not require dishonesty for drug companies to admit to side effects that their studies show to occur. The credit card statement is no more than basic math.
But It’s Getting Worse
The new, more troubling version of compelled speech lacks even the fig leaf of truth. As Bre Payton reported here at The Federalist, the Ninth Circuit Court of Appeals recently upheld a California law that requires all pregnancy centers, including those with explicit pro-life beliefs, to notify expecting mothers where they can procure an abortion.
Abortion advocates will say this requirement is no different than any other commercial disclosure. It is true, after all, that abortion is legal in the United States and pregnant women are not barred from undergoing that procedure. But in compelling pro-life pregnancy center workers to advertise abortion, they force Christians and other people with anti-abortion beliefs to go from merely tolerating a culture of death to actively participating in it. It’s not enough for abortion to be legal; the state of California demands that every one of us be complicit in it. As T.H. White said in describing totalitarianism, “everything which is not forbidden is compulsory.”
The trend in compelled speech has not been restricted to killing the unborn. In Colorado’s proposed assisted suicide law, the state government would also mandate speech in a way that is dishonest as well as immoral. The “dying with dignity” law—an Orwellian moniker to begin with—goes before Colorado’s voters this November. If passed, it would legalize the practice of prescribing life-ending drugs to terminally ill patients.
How is this a free speech concern? The Colorado law would require physicians to list the patient’s underlying illness as the cause of death, rather than the thing that actually killed him: suicide. While physicians would not be compelled to assist in suicide under the law, they would be compelled to lie about it.
A Matter of Life and Death
It is no coincidence that two states are compelling speech about what are euphemistically called “end of life issues” and could more accurately be called “killing people.” The laws’ authors know that simply legalizing these ways of ending human life will never conquer the moral qualms a significant segment of the populace holds. Attacking a belief as deeply held as the right to life guarantees resistance far more than that produced by pharmaceutical or electoral regulation.
Resistance is a problem for progressive politicians who want to change our core beliefs about life and death. When we refuse to acquiesce in a state policy, be it abortion or suicide, we remind the world that not everyone agrees. In compelling speech on these subjects, the state forces that disagreement into the shadows. Our thoughts remain our own, but for people working in these areas, to speak about them honestly becomes a crime.
Government censorship obviously violates the First Amendment and harms our basic liberties. Compelled speech is, in some ways, even more harmful. Banned speech will always still be uttered, in secret if not in public. The harm to public discourse is real, but people always find a way to disseminate the truth.
Compelled speech is more insidious, because it makes us party to the lie. When government makes people advertise abortion or lie about suicide, it does its best to force honest people into dishonesty, or else into retiring from the public sphere. With the next president likely to be more hostile to free speech than almost any of his or her predecessors, the danger of compelled speech is not going away any time soon.