Balkinization: The Emotional Impact of Compelled Speech

The Emotional Impact of Compelled Speech

Guest Blogger

Nadia N. Sawicki

For the conference on Public Health in the Shadow of the First Amendment

The fundamental reason why First Amendment restricts the government’s ability to compel speech is because compelling a person to communicate against her will violates her autonomy. This harm to personal integrity is even more injurious where the speaker disagrees with the message she is being forced to communicate. For this reason, little attention has been paid to the harms that some forms of compelled speech inflict on listeners.

My recent research deals with the First Amendment implications of the FDA’s recently withdrawn graphic tobacco labeling requirements, as well as state “display and describe” ultrasound laws as part of the abortion informed consent process. Both sets of laws have been criticized for relying on emotionally-triggering graphic imagery to persuade audiences that may not wish to receive these messages, and who (in the case of pre-abortion ultrasounds) may suffer psychological harm as a result of viewing them. In my symposium remarks, I argue that concerns about the emotional impact of the tobacco and ultrasound images on viewers may indeed be relevant to the First Amendment claims against compelled speech.

PICTURE ONE

PICTURE TWO

First, evidence about emotional impact may be relevant to determining whether a law is narrowly tailored (per strict scrutiny) or advances a government interest in the least extensive way possible (per Central Hudson). As recognized by the Middle District of North Carolina in Stuart v. Loomis, recognition that unwanted ultrasound images may cause some women serious psychological harm requires consideration of whether there may be a different way to deliver the same message with a lower risk of harm.

A second possibility is to query whether laws compelling display of emotionally-triggering graphic images constitute truthful and not misleading (per Central Hudson and Casey), and uncontroversial (per Zauderer) speech. The U.S. Court of Appeals for the District of Columbia in RJ Reynolds v. FDA, for example, found that the images selected by the FDA were not “purely factual and uncontroversial” under Zauderer because they were “inflammatory” and “unabashed attempts to evoke emotion” (precisely the reason the FDA selected them).

A final, perhaps less obvious, possibility is to incorporate these concerns about emotional impact by relying on the captive audience doctrine. This doctrine permits the state, under certain circumstances, to protect unwilling listeners from messages communicated in ways that make them hard to avoid (the sound of protesters outside abortion clinics, unavoidable intrusions into the home, etc.). The Supreme Court in Cohen v. California gave short shrift to the idea that the captive audience doctrine might be used to protect viewers in a public space who are exposed to images they deem offensive (Cohen’s “Fuck the Draft” jacket). However, modern scientific research about the effect of graphic images on human decisionmaking suggests that perhaps “averting one’s eyes” in the way the Court suggests does not actually protect the “non-viewer” from the image’s instantaneous and unavoidable imprint onto the brain. As far as I am aware, none of the parties in the tobacco or ultrasound cases made such an argument, but I don’t see why it couldn’t be presented with sufficient scientific support, particularly in the ultrasound cases, where the unwanted communication takes place in the privacy of a physician’s office.

Nadia N. Sawicki is Associate Professor, Beazley Institute for Health Law and Policy, Loyola University Chicago School of Law. You can reach her by e-mail at nsawicki at luc.edu

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