Fordham Intellectual Property, Media and Entertainment Law Journal Volume 31 XXXI Number 1 Article 1 2020 Selecting Scrutiny in Compelled-Speech Cases Involving Non- Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests-and-Values Alternative Clay Calvert University of Florida, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Constitutional Law Commons Recommended Citation Clay Calvert, Selecting Scrutiny in Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests-and-Values Alternative, 31 Fordham Intell. Prop. Media & Ent. L.J. 1 (2020). Available at: https://ir.lawnet.fordham.edu/iplj/vol31/iss1/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Selecting Scrutiny in Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests- and-Values Alternative Clay Calvert* This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis— in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amend- ment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involv- ing non-commercial expression in a factually eclectic collection of 2019 cases. Specifically, it focuses on the methodologies for * Professor of Law, Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. The author thanks University of Florida students Olivia Baruch, Jackson McMillan and Gabriella Solomon for their helpful reviews of early drafts of this Article. Additionally, the author thanks the faculty of the University of Florida Levin College of Law for their feedback and input at a workshop for a draft of this Article in January 2020. 1 2 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXXI:1 determining scrutiny and how, in turn, Becerra and Janus influ- ence those tacks. The right-not-to-speak cases addressed here concern the government requiring: (1) building owners to post small warning notices about a structure’s construction; (2) real-estate de- velopers to either display or fund public-facing art; (3) newspapers to disclose facts online about buyers of political advertisements; (4) groups registering voters to give disclaimers to those with whom they interact; (5) registered sex offenders to display warning signs in front of their residences proximate to Halloween; and (6) busi- ness operators to create expressive products (wedding invitations and videos) celebrating same-sex marital unions. Courts selected strict scrutiny in all but one of these diverse circumstances and often were influenced by Becerra and/or Janus in doing so, but was that rigorous standard appropriate? Does its application, in other words, amount to judicial overkill against the handiwork of law- makers? The Article argues that if courts in some of these settings used a First Amendment interests-and-values approach for deter- mining scrutiny—a path favored by Justice Stephen Breyer—instead of a simplistic, long-standing formula pivoting on whether a law is content-based or content-neutral, then they might have deploy- ed a less stringent test that better balanced competing interests. The Article identifies five First Amendment interests and values for resolving scrutiny in a more nuanced fashion in future compelled- speech disputes. INTRODUCTION ................................................................... 3 I. FROM PUBLIC ART, POLITICAL ADS, AND VOTER- REGISTRATION DRIVES TO SEX OFFENDER SIGNS AND SPEECH CELEBRATING SAME-SEX WEDDINGS: THE STATUS OF SCRUTINY IN 2019 IN SELECTED COMPELLED-SPEECH CASES................................. 25 A. Compelled Public-Facing Art .......................... 27 B. Compelling Disclosure About the Buyers of Political Advertisements .............................. 36 C. Compelling Disclosure of Information in Voter Registration Drives .......................................... 49 D. Compelling Sex Offenders to Express Self- Stigmatizing Messages ..................................... 52 2020] SELECTING SCRUTINY IN COMPELLED-SPEECH CASES 3 E. Anti-Discrimination Laws and Compelling the Creation of Speech-Based Products ................ 59 1. Resolving Scrutiny in Telescope Media Group ............................................. 66 2. Resolving Scrutiny in Brush & Nib Studios ....................................................... 76 3. Exposing a Fundamental Problem with the Usual Methodology for Choosing Scrutiny Beyond Selecting a Too Stringent Standard ..................................... 79 II. BEYOND BECERRA, JANUS, AND CONTENT- BASED CLASSIFICATIONS: CONSIDERING FIRST AMENDMENT INTERESTS AND BENCHMARKING AGAINST PRECEDENTS IN COMPELLED- SPEECH CASES ...................................................... 82 A. The First Amendment Anti-Orthodoxy Interest in Not Speaking ................................................ 85 B. The First Amendment Interest in Self-Realization Through the Receipt of Speech ......................... 90 C. The First Amendment Interest in the Discovery of Factual Knowledge ...................................... 94 D. The First Amendment Interest in Facilitating Democratic Self-Governance ........................... 98 E. The First Amendment Interest in Protecting an Autonomous Press ..................................... 106 CONCLUSION ................................................................... 108 INTRODUCTION Striving to foster awareness of earthquake risks, the City of Portland, Oregon, adopted laws in 2018 and 2019 affecting owners of unreinforced masonry buildings.1 The city has approximately 1,600 of such structures.2 Unfortunately, Portland also “has about a 1 Masonry Bldg. Owners of Or. v. Wheeler, 394 F. Supp. 3d 1279, 1292 (D. Or. 2019); see also id. at 1306 (noting “Defendants’ stated interests in ‘building awareness of seismic risk’ and promoting public safety”). The 2019 ordinance replaced a prior one adopted in 2018 that affected the owners of such structures. Id. at 1287–88. 2 Elliot Njus, Portland Delays Earthquake Warning Sign Ordinance, OREGONIAN (Portland), Mar. 1, 2019, at A4. 4 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXXI:1 one-in-four chance of suffering a major 8.0-or-greater earthquake in the next fifty years.”3 These edifices are unlikely to withstand such powerful seismic activity.4 Portland’s Bureau of Emergency Management warns that unreinforced masonry buildings create “a great risk for human injury, property damage, and loss of economic use after an earthquake.”5 The 2019 ordinance, like its 2018 predecessor, required owners of these buildings to conspicuously post placards measuring eight- by-ten inches on their exteriors near main entrances.6 The signs had to convey the following government-mandated message in at least fifty-point bold type: THIS IS AN UNREINFORCED MASONRY BUILDING. UNREINFORCED MASONRY BUILDINGS MAY BE UNSAFE IN THE EVENT OF A MAJOR EARTHQUAKE. P.C.C. [Portland City Code] 24.85.065.7 Portland established definitions of both reinforced and unreinforced masonry.8 Buildings satisfying specific retrofitting 3 Elliot Njus, Building Owners Seek to Block Warning Sign Ordinance Permanently, OREGONIAN (Portland), May 15, 2019, at A9 [hereinafter Building Owners]. For purposes of comparison, the Loma Prieta earthquake, which struck the San Francisco Bay Area in October 1989, killed sixty-seven people and caused more than $5 billion in damages, measured 6.9 on the Richter scale. See San Francisco Earthquake of 1989, HISTORY (Dec. 18, 2009), https://www.history.com/topics/natural-disasters-and-environment/1989-san- francisco-earthquake [https://perma.cc/RH9P-4PX2]. 4 Elliot Njus, Earthquake Warning Ordinance Spurs Lawsuit, OREGONIAN (Portland), Dec. 21, 2018, at A10. 5 Why Are We Focusing on URMs?, PORTLAND BUREAU OF EMERGENCY MGMT., https://www.portlandoregon.gov/pbem/77827 [https://perma.cc/RH9P-4PX2]. 6 Wheeler, 394 F. Supp. 3d at 1288. 7 Id. 8 Specifically, Portland defined unreinforced masonry as: [A]dobe, burned clay, concrete or sand-lime brick, hollow clay or concrete block, hollow clay tile, rubble and cut stone and unburned clay masonry that does not satisfy the definition of reinforced masonry as defined herein. Plain unreinforced concrete shall not be considered unreinforced masonry for the purpose of this Chapter. PORTLAND