R. George Wright
Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.
Can government exercise coercion not just through physical constraints or legally enforced requirements and prohibitions,[1] but through speech by government officials? Speech, whether by government officials or by private actors, can have many functions and effects.[2] Whether speech by government officials can be coercive, though, will depend upon how we choose to define the murky idea of coercion.[3] Regardless of all complications, though, the idea that speech can be coercive,[4] and that speech by government actors in particular can be coercive,[5] seems well established, at least in the case law.[6]
Consider, to begin with, a variation on the case of Meese v. Keene.[7] This case involved an official federal government classification of several Canadian films as “political propaganda.”[8] If the films in question were legally required to label themselves as ‘political propaganda,’ that would amount to compelled political speech by a private party that would be properly tested by strict scrutiny.[9] But if the government itself publicly declares the films to be political propaganda, without necessarily legally requiring any further speech by the film distributors, there remains a serious problem. The government’s speech in such a case might conceivably amount to coercive speech. The theory would be that given the negative connotations of the word ‘propaganda,’[10] the government’s speech might tend to suppress consumer demand, or undermine the willingness of the relevant private parties to screen the films in question. Whether this government speech could involve actual coercion of the films’ producers or distributors would again depend on how we choose to define the idea of coercion.
There are large numbers of cases[11] in which a coercive effect may result from government speech in conjunction with some sort of informal or preliminary government activity. That is, the accompanying government speech falls short, in itself, of a more formal government action in the form of, perhaps, an indictment, seizure, tax, confinement, or enforced penalty. Whether the government speech in such cases should be taken as mere expression by the government actor, hence protected as permissible government speech,[12] or else as coercive with respect to some target of the speech, and thus perhaps not constitutionally protected, will depend upon the subtleties of context.
There are also cases in which apparently coercive government speech may be constitutionally justified. Public school students, for example, are often required, and quite possibly coerced, to learn and to recite the substance of government speech as embodied in a tested secular curriculum, regardless of the student’s disagreement with the government’s public school curricular speech on the merits.[13]
But in other cases involving minor public school students, courts are often more sensitive to the importance of the overall context[14] in determining the presence or absence, and the potential justifiability, of coercive speech that is either uttered, or promoted and approved, by government officials.[15]
Coercion through speech that is either uttered by government officials, or that is mandated, endorsed, or approved by those officials, is central to a number of the most important Establishment Clause cases.[16] Lee v. Weisman in particular refers to subtle and indirect official and peer pressure, in a public school graduation ceremony context, to not overtly or apparently dissent.[17] Santa Fe v. Doe refers to a sometimes rather less than easy choice of how to respond, in light of immense peer pressure, given a “truly genuine desire”[18] to be present at a high school football game.[19] And Doe v. Elmbrook School District refers to “subtle social pressure”[20] and “the law of imitation”[21] in the context of a public school graduation ceremony held in a church environment, with a captive audience, even without any overt prayer.[22]
Whether any government speech in these Establishment Clause cases specifically involving minors was coercive, or unjustifiably coercive, must again inevitably depend upon how we choose to analyze the idea of coercion itself. Ultimately, the concept of coercion may well be too indeterminate and contested to be of much use in Establishment Clause cases.[23] But if the idea of coercion, and particularly that of coercive speech by government actors, is to have any important continuing role in the law, the courts much bear in mind, systematically, all of the following fundamental questions:
1. Can all cases of coercion by analyzed in terms of (a) a coercer, (b) a coerced person or,
below, coercee, (c) a means of coercion, (d) an activity or belief subjected to coercion, and
(e) an actual outcome of the coercion?
2. Must coercion be intended? Or could there also be reckless coercion?
3. Can there be coercion in which the coercer does not care how the coercee responds, as
long as the coercee pays some sufficient price? Or where the coercer just enjoys exercising
coercive power?
4. Is coercion mostly an empirical matter of how the coercee actually responds, in fact? Or
does coercion have built into it a normative or moral baseline involving our reasonable
expectations of the coercee’s abilities and appropriate limitations, including with respect to
a coercee’s ability to resist, or else of the coercee’s legitimate rights?
5. If a potential coercee successfully resists the attempted severe coercion and defies the
wishes of the coercer, has there still been actual coercion? Or was there just a failed
attempt to coerce? What if most people in the coercee’s general position would not have
been able to successfully resist? Call this the Joan of Arc problem. Or the strong-willed
public school student problem.
6. Must coercion always involve a threat of a future harm? Could a genuine offer of a great
benefit ever be coercive, in any context?
7. Is ordinary law enforcement, as through arrest and confinement for genuine, serious
criminal activity, generally coercive, or not? If an arrest and confinement is fully justified
legally and morally, can it still be coercive?
8. Can there be coercion if the supposed coercee still bears full moral responsibility for
their conduct and choices?
9. How, if at all, does the idea coercion apply differently to minor children and to competent
adults? Can genuine coercion of competent adults ever be morally and legally justified?
10. And finally, can speech, whether by a government official or not, ever amount to
coercion where the speech involves only a persuasive argument on the merits of some
question? Could there be a case where genuinely, deeply, and fully accepting a persuasive
argument involves exceptionally high costs for the party involved, of one sort or another?
These are difficult, but inescapable, and often high-stakes questions. Only when we have acceptable, reasonably determinate answers to each of these questions can we possibly arrive at a responsible understanding of coercion, and of coercive government speech in particular. As long as such answers are missing, legal references to coercion will be unduly indeterminate, excessively subjective, and, worse, sufficiently open and arbitrary to allow for the ready manipulability of the concept of coercion by the courts.
[1] See, e.g., the military draft mandatory registration requirements litigated in National Coalition for Men v. Selective Service System, 969 F.3d 546 (5th Cir. 2020) (casting doubt on Rostker v. Goldberg, 453 U.S. 57 (1981)).
[2] See Mitchell Green, Speech Acts, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/speech-acts (rev. ed., September 24, 2020).
[3] For background, see Alan Wertheimer, Coercion (1987); Michael D. Bayles, A Concept of Coercion, in 14 Nomos: Coercion 16, 24 (J. Roland Pennock & John W. Chapman eds., 1972) (reprint ed. 2007); Robert Nozick, Coercion, in Philosophy, Science, & Method 440, 441 (Sidney Morgenbesser, Patrick Suppes & Morton White eds., 1969); Michael M. Oswalt, The Content of Coercion, 52 U.C. Davis L. Rev. 1585, 1587 (2019).
[4] See Comment, Coercion, Blackmail, and the Limits of Protected Speech, 130 U. Pa. L. Rev. 1469, 1471 (1983).
[5] The case law suggests, for example, that retaliatory discipline in the employment context can sometimes take the form of coercive government speech. See, e.g., Mulligan v. Nicolas, 835 F.3d 983, 990 (9th Cir. 2016); Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir. 2013); Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 416-17 (4th Cir. 2006). See also the controversial case of Wilson v. Houston Company College Sys., 966 F.3d 341, 341 (5th Cir. 2020) (per curiam) (Jones, J., dissenting from denial of reh’g en banc) (free speech claim by trustees board member objecting to fellow board members’ official public censure of his conduct).
[6] Most dramatically, as depicted in George Orwell, 1984 14 (Signet ed. 1961) (1949) (“[t]he horrible thing about the Two Minutes Hate was not that one was obliged to act a part, but that it was impossible to avoid joining in”). We set aside cases of arguably coercive government speech where that speech is much more generally legally actionable on independent grounds, as in cases of blackmail, extortion, disturbing the peace, forgery, perjury, fraud, and defamation. See, e.g., Paul v. Davis, 424 U.S. 693 (1976) (official circulation of a list of “active shoplifters”); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (official circulation of a list of purportedly communist private organizations).
[7] 481 U.S. 465 (1987).
[8] Id. at 467.
[9] See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977).
[10] See Edward Bernays, Propaganda (Ig Publ. 2004) (1928); Jacques Ellul, Propaganda (Konrad Kellsen & Jean Lerner trans., 1973). But see Keene, 481 U.S. at 477-78 (focusing on a morally neutral possible meaning of the term ‘propaganda’).
[11] The crucial such case is Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)(subtle, indirect, informal intimidation of book sellers). Among the more recent such cases are Backpage.com, LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2020) (“[w]hate matters is the distinction between attempts to convince and attempts to coerce”); Hammerhead Enterprises, Inc. v. Brezenoff, 708 F.3d 33, 39 (2d Cir. 2007) (noting the “fine lines between permissible expressions of personal opinion [by government official] and implied threats to employ coercive state power to stifle protected speech”); Turkish Coalition of America, Inc. v. Bruiniks, 678 F.3d 617, 622 (8th Cir. 2012) (referring to the possibility of “an injury to reputation through stigmatizing government speech”); Zieper v. Metzinger, 474 F.3d 60, 65-66 (2d Cir. 2003) (raising the possibility of “an impermissible type or degree of pressure” even from an official without directly relevant regulatory or enforcement power); NRA v. Cuomo, 350 F. Supp. 3d 94, 112-14 (N.D.N.Y. 2018) (discussing the impact, in context, of officially-sourced “guidance letters” sent to banks and insurance companies).
[12] See, e.g., Walker v. Texas Div., Sons of Confed. Vets., 576 U.S. 200 (2015) (a state’s specialized license plate program as protected government, rather than private party, speech).
[13] See, e.g., Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1027-29 (9th Cir. 1998) (public school curricular books as protected from a judicial ban even where the books are allegedly racist in content). For a constitutional challenge to the forced recitation of public school curricular material, see CAPEEM v. Torlakson, 973 F.3d 1010 (9th Cir. 2020). Government speech that gratuitously inflicts dignitary and stigmatizing harms may or may not violate the target’s recognized equal protection rights, whether through coercion or not. See, e.g., Lee v. Trump, 2020 WL 4547225 (S.D.N.Y. August 6, 2020) (addressing presidential references to the alleged source of the novel coronavirus-19); NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990) (flying a confederate flag next to the American Flag at the state capitol building). For thoughtful broad background and issue development, see Helen Norton, The Government’s Speech and the Constitution 104-19 2019).
[14] For thoughtful defenses of the fundamental importance of context for a broad range of purposes see Peter Bauman, Epistemic Contextualism: A Defense (2016); Keith DeRose, The Case For Contextualism (2009); Mark Timmons, Morality Without Foundations: A Defense of Ethical Contextualism (2004).
[15] See, e.g., Freedom From Religion Foundation, Inc. v. Chino Valley Unified Sch. Dist., 896 F.3d 1132, 1145-46 (9th Cir. 2018). See also Wertheimer, supra note 3, at 184 (“coercion claims are emphatically and technically contextual”).
[16] See, in chronological order, Lee v. Weisman, 505 U.S. 577 (1992) (a public school content-constrained graduation prayer by a local rabbi); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (involving a somewhat more officially “distanced” religious invocation at a public school football game); Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) (en banc) (addressing the circumstances of a public high school graduation ceremony held, for reasons of practicality, in a large local mega-church).
[17] See Lee, 505 U.S. at 593-94.
[18] Santa Fe, 530 U.S. at 311.
[19] See Id. at 311-12.
[20] Elmbrook, 687 F.3d at 855.
[21] Id.
[22] See Id.
[23] See R. George Wright, Why a Coercion Test Is of No Use in Establishment Clause Cases, 41 Cumb. L. Rev. 193 (2010).
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