Can You Be Required to Speak? Compelled Speech Explained

Freedom of speech is the best-known freedom protected by the First Amendment.

What is less known about America’s favorite freedom is that it not only protects the right to speak, but it also protects the right not to speak.

The First Amendment protects us from government-compelled speech.

What is compelled speech?

Compelled speech means speech that is forced or required by the government. It is not freely made. Someone who is compelled to speak might not agree with what they are required to say.

How does compelled speech relate to free speech under the First Amendment?

The First Amendment’s protection of free speech means that people can say what they want without fear of government punishment (with a few exceptions).

Freedom of speech also means that the government cannot control how people express themselves and what they believe (in most cases).

This means that just like the government cannot ban speech, it usually cannot require or “compel” speech.

Compelled speech would typically violate the First Amendment.

What are examples of compelled speech that violate the First Amendment?

The U.S. Supreme Court has identified several specific examples of compelled speech that violate the First Amendment and cannot be required.

Newspapers cannot be forced to carry responses to editorials

Newspapers and other publications have a First Amendment right to publish what they wish.

In Miami Herald Publishing Company v. Tornillo (1974), the Supreme Court ruled that the Miami Herald could not be forced to carry a political candidate’s response to an editorial criticizing him.

Social media platforms cannot be compelled to allow certain users or user-posted content

In its 2023-2024 term, the Supreme Court heard the cases of laws in Florida and Texas that would regulate how social media platforms moderate content.

The court returned the cases to lower courts to review again, but the court also signaled that, like publications, social media platforms have a right to decide what types of content and which users they wish to allow.

RELATED: The complete guide to free speech on social media

People cannot be compelled to allow people they do not agree with to join events or demonstrations they organize

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc. (1995), the Supreme Court said that a St. Patrick's Day parade organized by a veterans’ group could not be required to include LGBTQ+ groups.

People cannot be compelled to use others’ pronouns

While many schools and workplaces have pronoun policies, typically, the government cannot compel people to use others’ pronouns or punish them for not doing so. In 2021, an appeals court ruled that a public university in Ohio violated a professor’s rights when it punished him for violating the public school’s pronoun policy. The same year, a California law requiring staff at health care facilities to be referred to by their pronouns was also overturned.

However, if not using someone’s pronouns was done to harass or discriminate in severe and persuasive ways, it could move away from being protected speech into being unprotected conduct.

Public school students cannot be compelled to say the Pledge of Allegiance

Many public schools reserve time for the Pledge of Allegiance, but students do not have to participate.

In 1943, the Supreme Court said requiring students to say the pledge violates their First Amendment free speech rights.

People cannot typically be compelled to speak using their legal names

In most cases, the First Amendment protects the right to speak anonymously or using a made-up name.

For example, someone can publish a novel using a pen name. Someone can print a pamphlet expressing a view without including their name on it.

In other words, the government cannot compel speech in which people must identify themselves by their legal name when they speak, with some exceptions such as on legal documents and in advertising.

People cannot be compelled to display a government message they disagree with on a license plate

License plates are issued by the government. They are required to identify registered vehicles. Often, license plates include a state slogan. But the government cannot require people to display these slogans if they do not agree with them.

In 1977, the Supreme Court said a couple could not be punished for covering up the New Hampshire state slogan “Live Free or Die” on their car’s license plate.

Businesses cannot be compelled to create for customers expression that the owners disagree with

One complex area of free speech is whether businesses can be required to serve customers they disagree with. In many states, antidiscrimination laws say businesses must serve all customers. But some companies’ business is creating content on behalf of customers.

In 2023, the Supreme Court said that businesses can’t be required to create speech – specifically websites – with content that the business owners do not believe in. The court said this would be government-compelled speech and would violate the First Amendment. One remaining question is exactly what kind of business services are expressive speech that is protected from being compelled: Taking photos? Providing decorations? Icing a cake? Courts will have to consider cases about each of these kinds of services to rule if they are the business’s speech.

Overly burdensome business disclosures cannot be required

Sometimes, businesses can be required to notify employees or customers of important safety or transparency information. But not all attempts to require businesses to report or disclose information are OK under the First Amendment. Sometimes, such requirements have been struck down as violations of the First Amendment’s protection from being compelled to speak.

In 2018, the Supreme Court said antiabortion clinics can’t be required to provide abortion information to clients. In National Institute of Family and Life Advocates v. Becerra, crisis pregnancy centers challenged on free speech grounds a California law enacting the requirement and won.

The Corporate Transparency Act required small businesses to report information about their owners and beneficiaries to the government. The law aimed to limit criminal use of anonymously owned shell companies that could be used for money laundering. It was struck down in March 2024 as violating First Amendment free speech rights and burdening businesses too much.

What are some examples of compelled speech that do not violate the First Amendment?

Freedom of speech is not an unlimited right. Courts have ruled that, in some limited cases, the government can regulate speech without violating the First Amendment. Sometimes, compelled speech is allowed — if there is a very good reason to do so and the government requires no more than is necessary.

Disclosure requirements for business advertising, products and services can be OK

Businesses can in some cases be required to provide certain information to employees and to customers or potential customers.

These requirements are typically to protect the health, privacy and rights of employees and consumers.

Employee rights disclosures

The U.S. Department of Labor enforces laws that require employers to inform employees about laws and regulations that protect employees’ rights. For example, many businesses must post or share information about workplace nondiscrimination laws, the rights of workers with disabilities, minimum wage laws and on-the-job safety.

Consumer product warnings

The U.S. Consumer Protection Safety Commission is the government agency responsible for protecting the public from risks posed by consumer products. One of its roles is enforcing required product warnings.

Some consumer products must include labels with warnings, use instructions, confirmations that they conform to consumer safety standards or other notices.

For example, products meant for children that contain small parts that could pose a choking hazard must be labeled accordingly. Plastic bags that products come in must have a suffocation risk warning. Chemicals such as cleaners that could be hazardous to health must have first aid information.

Another government agency, the Food and Drug Administration, regulates food, medicine and cosmetics, including enforcing required warnings and labels for those products.

For example, tobacco products like cigarettes must have health warning labels on their packaging and advertising, a requirement a judge ruled constitutional in March 2024.

Ad disclosures

While commercial speech — speech including advertising and business transactions — is considered free speech under the First Amendment, it is somewhat less protected than other types of speech so that the government can prevent fraud.

The Federal Trade Commission is the federal government agency tasked with protecting people from deceptive or unfair business practices, including by enforcing required disclosures on advertising.

Truth-in-advertising rules mean that ads must substantiate or back up claims they make, including by disclosing information to explain or support the claims. For example, if an ad shows a user of a product explaining how it helped them, the ad must explain if the results are typical or could be expected by another consumer.

Paid product endorsements must be labeled as such. So too must endorsements made by someone connected with the business they are endorsing, such as by an employee or relative of the owner. Social media influencers who receive free products or services in exchange for posting about them must disclose this. These requirements help a consumer understand why someone may be endorsing a product.

Consumer protection laws also establish requirements for mass marketing and business emails. These messages must have a way to unsubscribe and must tell recipients who the sender is and where they are located.

Disclosure requirements on political campaign ads can be OK

Candidates for office and political advocacy groups, like political action committees and political parties, are required to disclose in their political ads who has created the ads. Similarly, campaign finance laws require some disclosures of donations to campaigns.

RELATED: Why candidates must say "I approve this message" in campaign ads

Though these requirements are compelled speech, courts have said they do not violate the First Amendment because they serve the important purpose of informing voters about campaigns. In addition, they are limited burdens on free speech rights and don’t prevent political speech.

Oaths of office can be OK

Government employees take oaths of office promising to uphold the Constitution and, in some cases, swearing that they have not and will not advocate for overthrowing the government.

However, oaths that require someone to swear they haven’t been part of a certain organization, like the Communist Party, or to swear to promote certain values, have been struck down. These would violate First Amendment freedom of assembly and freedom of speech rights. Oaths that are too vague, making them hard to understand and abide by, have also been struck down.

It is important to note that oaths of office can be sworn on any text, with no requirement to use the Bible, and no religious test can be required to be eligible to serve in a government office.

Subpoenas can be OK

The government in many cases can get court orders, or subpoenas, requiring people to provide records or testimony in court or to other government bodies.

Sometimes, the First Amendment or other laws protect people from being forced to turn over records. For example, all states except Wyoming have laws or court rulings saying that journalists cannot be required to reveal confidential sources.

Subpoenas that are too broad – that ask for too much potentially unrelated information – or that ask for private medical or confidential tax information can also sometimes be quashed.

Requiring state contractors to sign pledges agreeing not to boycott Israel can be OK

In 2022, an appeals court said that it is not a violation of state contractors’ free speech to require them to sign a pledge not to boycott Israel or else get less pay. The court said that the state law does not impact expression because it only regulates economic activity. In 2023, the Supreme Court declined to hear an appeal of the ruling. 

This report is compiled based on previously published Freedom Forum content and with the input of Freedom Forum experts. The editor is Karen Hansen. Email.