Imagine the following scenario: You just turned 16. You spent the last two years saving every penny from jobs, birthdays and Christmas gifts to buy your first car. You go to the dealership and find the perfect vehicle for your needs and price range. The excitement is palpable as you take possession of your car – a sign of hard work, of independence, of transportation liberty.
Upon purchasing it, however, you learn of some new rules you must obey — that you must drive it every day between 3 a.m. and 4 a.m. At 15 miles per hour. While blasting a government-approved selection of polka tunes. Failure to comply would result in a hefty, recurring fine.
Before the Supreme Court, this scenario could constitute a (strange) kind of “regulatory taking.” In such cases, a person retains possession of property, but government regulation mandates that she use it in such particular ways, ways so antithetical to his intention in purchasing, as to effectively take that property away. According to the Fifth Amendment, such takings are only allowed in narrow cases of “public use” with “just compensation.”
The Supreme Court will decide three cases on this topic in the coming months. But the property in question isn’t a car. And the Amendment isn’t the Fifth. Instead, the property is speech. And its protection comes, of course, from the First Amendment’s guarantee that “Congress shall make no law…abridging the freedom of speech.” But the essential question is similar: can the government force you to use something that is your own—your speech—in the ways it demands?
The three cases present distinct instances of this question. The first, Janus v. ASFCME, concerns whether the government can force public employees to speak through unions—which they refused to join—by mandatory subsidizing of those unions’ activities. The second, National Institute of Family and Life Advocates v. Becerra, pertains to whether the state of California may compel crisis pregnancy centers—centers built in opposition against and as alternatives to abortion—to in essence advertise state abortion services. The third, and probably the best known, is Masterpiece Cakeshop v. Colorado Civil Rights Commission. There, Colorado law requires a baker to use what he believes to involve artistic expression—a kind of speech—to celebrate same-sex weddings, which he cannot support on religious grounds.
In each instance, the Court must decide whether the government can force individuals to use their property for purposes the state wishes, but they themselves do not. That is a problem regardless of the property involved. Yet this property is more precious and more constitutionally protected than a car. The Fifth Amendment still allows for extensive regulations of a vehicle before one can claim a regulatory taking. It still allows some commandeering for public uses with compensation. Not so for speech. With speech, the government bears the highest burden –called strict scrutiny—to prove it can make any restriction on what a person says or—as in these cases—tell a person what to say.
And such heightened protection is warranted. For unlike a car, speech is at the heart of our humanity and of our citizenship. By speech we make known our view of justice, our understanding of truth, our love of beauty. By speech we participate in families, communities and government. James Madison declared, “Conscience is the most sacred of all property” even went so far as to say that “a man’s conscience…is more sacred than his castle.” Speech is the means by which we make our conscience known. And in forcing persons to speak in these ways, the government asks them to violate that conscience, that property more sacred than any other kind. It forces them to participate in our common life not as free fellow citizens, but as compelled mouthpieces for the state.
Regardless of what we each think about the justice or injustice of their refusal, the Court should seek as much as possible to let these persons speak as they wish, not as the state so wishes them to speak. I loved my first car. But property in our speech is exponentially more precious—to ourselves, to our polity, and to our Constitution.
Adam Carrington is assistant professor of politics at Hillsdale College.
