Compelled speech

Transmission of expression required by law

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Compelled speech is a transmission of expression required by law. A related legal concept is protected speech. Just as freedom of speech protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which that individual disagrees.

## Canada

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Freedom of expression is a fundamental freedom under Section 2 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has interpreted this right as including "the right to say nothing or the right not to say certain things."[1] In RJR-MacDonald Inc v Canada (AG), tobacco companies successfully challenged legislation requiring them to include unattributed health warnings on packaging. In Lavigne v Ontario Public Service Employees Union, the Court held that mandatory union membership and dues, some of which were used for purposes the union member disagreed with, did not violate his right to freedom of expression. In Slaight Communications Inc. v Davidson,[2] the Court held that a requirement to provide a reference letter for a former employee who was unjustly dismissed did infringe the employer's freedom of expression, but this infringement was upheld as a reasonable limitation under section 1 of the Charter.[3]

In 2016, University of Toronto psychology professor and  clinical psychologist Jordan Peterson argued that amendments to the Canadian Human Rights Act and the Criminal Code would require compelled speech.[4] The amendments added gender expression and gender identity as protected grounds to the Canadian Human Rights Act and to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing. Peterson argued that the law would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns.[4][5] Legal experts challenged Peterson's interpretation, saying that the bill would not criminalize using non-preferred pronouns.[6][7][8]

In 2021, Polish-Canadian pastor Artur Pawlowski was ordered by a court to inform his audience of the established opinions of medical experts regarding COVID-19 when expressing his views on the topic in a public setting. The requirement was a part of his probation conditions, which he had been placed on as a sentence for contempt of court, after he violated a court order requiring him to obey public health restrictions.[9][10][11] However, the sentence was overturned on appeal.[12]

## United Kingdom

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Article 10 of the European Convention on Human Rights protects the right of freedom of expression, and section 3(1) of the Human Rights Act 1998, requires that as far as possible all legislation be given effect in a way which is compatible with this. In Lee v Ashers Baking Company Ltd, the Supreme Court considered whether a bakery in Northern Ireland had violated anti-discrimination law by refusing to decorate a cake with a message in support of gay marriage, with which the bakers disagreed on religious grounds. They held that although the bakery may have discriminated on the basis of the customer's political beliefs, which would in itself contravene the Fair Employment and Treatment (Northern Ireland) Order 1998,[13] the legislation had to be "read down" in a way which would not violate the defendants' Article 10 rights, taken to include the right not to express a particular opinion. The right in Article 9 is a limited right because it permits restrictions on free speech that are necessary in a democratic society in pursuit of a legitimate aim, but the Supreme Court found that no such justification existed in this case.[14] (The court also considered whether the defendants had discriminated based on sexual orientation, but because they concluded that they had not done, the court did not need to consider whether the relevant legislation should be similarly read down.[15]

### Scotland

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Margaret Wilson, executed by drowning for refusing to swear an oath.

During The Killing Time of the 1680s an Abjuration Oath could be put to suspects where they were given the option to abjure or renounce their allegiances. The terms of the oath were deliberately designed to offend the consciences of the Presbyterian Covenanters. Those who would not swear "whether they have arms, or not" could be "immediately killed" by field trial "before two witnesses" on a charge of high treason.[16] John Brown was included among those executed in this judicial process by John Graham, 1st Viscount Dundee (Bluidy Clavers) on 1 May 1685.[17] The wives and children of such men could also be put out of their houses if they had spoken to the suspect or refused the oath themselves. 18-year-old Margaret Wilson and 63-year-old Margaret McLaughlan were killed "without human hand" when they were drowned in the sea for refusing to take the Abjuration Oath.[18]

## United States

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### Examples currently in litigation

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* Compelling Amazon's Whole Foods to, per Amazon's filing, "favor certain expressions of political speech over others in its retail grocery stores."[19]

### Examples supported by law

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* Requiring a cable system to carry local stations – Turner Broadcasting v. FCC (1994)
* Mandatory university fees that support groups with which other students disagree – Board of Regents of the University of Wisconsin System v. Southworth (2000)
* Mandatory fees on agricultural products to support advertising – Johanns v. Livestock Marketing Association (2005)
* Subpoenas to companies compelling testimony that may be self-incriminatory[20]
* Filing a tax return[20]
* Surgeon’s General warnings on alcohol and tobacco products[20]

### Examples not supported by law

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* Saluting the flag or reciting the Pledge of Allegiance – West Virginia State Board of Education v. Barnette (1943)
* Requiring a newspaper to publish an advertisement – Miami Herald v. Tornillo (1974)
* School attendance past the eighth grade – Wisconsin v. Yoder (1972)
* Motto on license plate – Wooley v. Maynard (1977)[21]
* Compelled self-incrimination by an individual – Fifth Amendment (1789)
* Certain disclosures by organizations that offer limited services to pregnant women - National Institute of Family and Life Advocates v. Becerra (2018)[22]

### Government speech

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Main article: Government speech

A government of, by, and for the people also speaks on behalf of its people. The government is not required to express views held by groups in the population.

* A state may choose not to offer a license plate with a particular message – Walker v. Texas Division, Sons of Confederate Veterans (2015)[23]
* A city may accept a donation of statue from one religious group and refuse to accept one from another – Pleasant Grove City v. Summum (2009)

## References

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1. ^ RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199.
2. ^ Slaight Communications Inc. v Davidson, [1989] 1 SCR 1038.
3. ^ Bowal, Peter (2019-07-04). "Compelled Expression". LawNow. Centre for Public Legal Education Alberta. Retrieved 2020-11-01.
4. ^ a b DiManno, Rosie (November 19, 2016). "New words trigger an abstract clash on campus". Toronto Star.
5. ^ Craig, Sean (September 28, 2016). "U of T professor attacks political correctness, says he refuses to use genderless pronouns". National Post.
6. ^ Beauchamp, Zack (2018-03-26). "Jordan Peterson, the obscure Canadian psychologist turned right-wing celebrity, explained". Vox.com. Retrieved 12 December 2018. "He said he would refuse to refer to transgender students by their preferred pronouns [...]. Experts on Canadian law said that Peterson was misreading the bill — that the legal standard for 'hate speech' would require something far worse, like saying transgender people should be killed, to qualify for legal punishment."
7. ^ Khandekar, Tamara (24 October 2016). "No, the Trans Rights Bill Doesn't Criminalize Free Speech". Vice. Retrieved 1 October 2018.
8. ^ Murphy, Jessica (4 November 2016). "The professor versus gender-neutral pronouns". BBC News. Retrieved 1 October 2018.
9. ^ Brown, Jon (October 16, 2021). "Canadian pastor defiant as judge orders him to parrot 'medical experts' from pulpit: 'I will not obey'". Fox News.
10. ^ Grant, Meghan (Oct 13, 2021). "Anti-mask activists ordered by Calgary judge to preach science, too". CBC News. Retrieved April 7, 2022.
11. ^ Grant, Meghan (2021-06-28). "Alberta pastor, brother, café owner guilty of contempt for breaking COVID-19 health rules". CBC News. Retrieved 2022-07-24.
12. ^ Dryden, Joel (2022-07-22). "Alberta appeal court sets aside contempt sanctions against pastor, brother and cafe owner". CBC News. Retrieved 2022-07-24.
13. ^ Judgment, part III
14. ^ Ibid, part IV
15. ^ Ibid, Part II.
16. ^ Wodrow, Robert (1832). The history of the sufferings of the Church of Scotland from the Restoration to the Revolution (Vol IV ed.). Glasgow: Blackie. pp. 154–155. Retrieved 16 August 2018.
17. ^ Terry, Charles Sanford (1905). John Graham of Claverhouse, viscount of Dundee, 1648-1689. London: A. Constable. p. 197. Retrieved 16 August 2018.
18. ^ McCrie, Charles Greig (1893). The Free Church of Scotland : her ancestry, her claims, and her conflicts. Edinburgh: T. & T. Clark. pp. 50–51. Retrieved 17 August 2018.
19. ^ "Whole Foods says its First Amendment rights will be violated if it's forced to allow employees to wear Black Lives Matter insignia". www.msn.com. Retrieved 2022-01-13.
20. ^ a b c Frankel, Alison (April 24, 2017). "When the government can make businesses talk". Reuters. Retrieved 15 September 2017.
21. ^ Nolan, Mike (February 24, 2017). "Orland Park vehicle sticker with Blue Lives Matter symbol stirs debate". Chicago Tribune. Retrieved 15 September 2017.
22. ^ Pomeranz, J. L. (March 2019). "Abortion Disclosure Laws and the First Amendment: The Broader Public Health Implications of the Supreme Court's Becerra Decision". Am J Public Health. 109 (3): 412–418. doi:10.2105/AJPH.2018.304871. PMC 6366505. PMID 30676798.
23. ^ Bravin, Jess (23 June 2015). "Governors Seek to Curb Confederate Flag License Plates: Moves follow Charleston mass killing, Supreme Court ruling". Wall Street Journal. Retrieved 16 March 2019.