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Compelled speech is a transmission of expression required by law. A related legal concept is protected speech. Just as freedom of speech protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which they disagree.
University of Toronto psychology professor and clinical psychologist Jordan Peterson has used the term "compelled speech" to describe Canadian federal government's Bill C-16, which added "gender identity or expression" as a prohibited ground of discrimination under the Canadian Human Rights Act. Peterson argues that the bill would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns. Legal experts have challenged Peterson's interpretation; they say that the bill would not criminalize using non-"preferred pronouns". By 2018, Daniel Woolf, the vice-chancellor of Queens University stated that "compelled speech" had become a "very divisive subject within the Ontario law profession" and was the object of much tension.
Article 10 of the European Convention on Human Rights protects the right of freedom of expression, and section 3(1) of the Human Rights Act 1998, requires that as far as possible all legislation be given effect in a way which is compatible with this. In Lee v Ashers Baking Company Ltd, the Supreme Court considered whether a bakery in Northern Ireland had violated anti-discrimination law by refusing to decorate a cake with a message in support of gay marriage, with which the bakers disagreed on religious grounds. They held that although the bakery may have discriminated on the basis of the customer's political beliefs, which would in itself contravene the Fair Employment and Treatment (Northern Ireland) Order 1998, the legislation had to be "read down" in a way which would not violate the defendants' Article 10 rights, taken to include the right not to express a particular opinion. The right in Article 9 is a limited right because it permits restrictions on free speech that are necessary in a democratic society in pursuit of a legitimate aim, but the Supreme Court found that no such justification existed in this case. (The court also considered whether the defendants had discriminated based on sexual orientation, but because they concluded that they had not done, the court did not need to consider whether the relevant legislation should be similarly read down.)
During The Killing Time of the 1680s an Abjuration Oath could be put to suspects where they were given the option to abjure or renounce their allegiances. The terms of the oath were deliberately designed to offend the consciences of the Presbyterian Covenanters. Those who would not swear "whether they have arms, or not" could be "immediately killed" by field trial "before two witnesses" on a charge of high treason. John Brown was included among those executed in this judicial process by John Graham (Bluidy Clavers) on 1 May 1685. The wives and children of such men could also be put out of their houses if they had spoken to the suspect or refused the oath themselves. Eighteen year old Margaret Wilson and sixty-three year old Margaret McLaughlan were killed "without human hand" when they were drowned in the sea for refusing to take the Abjuration Oath.
Examples of compelled speech supported by law
- Requiring a cable system to carry local stations – Turner Broadcasting v. FCC (1994)
- Mandatory university fees that support groups with which other students disagree – Board of Regents of the University of Wisconsin System v. Southworth (2000)
- Mandatory fees on agricultural products to support advertising – Johanns v. Livestock Marketing Association (2005)
- Required availability of videos and podcasts in a form accessible to sight- and hearing-impaired persons
- Subpoenas to companies compelling testimony that may be self-incriminatory
- Filing a tax return
- Warnings on alcohol and tobacco products
Examples of compelled speech not supported by law
- Saluting the flag – West Virginia State Board of Education v. Barnette (1943)
- Requiring a newspaper to publish an advertisement – Miami Herald v. Tornillo (1974)
- School attendance past the eighth grade – Wisconsin v. Yoder (1972)
- Motto on license plate – Wooley v. Maynard (1977)
- Compelled self-incrimination by an individual – Fifth Amendment (1789)
- Certain disclosures by organizations that offer limited services to pregnant women National Institute of Family and Life Advocates v. Becerra (2018)
- Provision of sonogram images and heartbeat audio to abortion patients.
- Requiring a business proprietor to make a product carrying a message they profoundly disagree with - Lee v Ashers Baking Company Ltd and others
A government of, by, and for the people also speaks on behalf of its people. The government is not required to express views held by groups in the population.
- A state may choose not to offer a license plate with a particular message – Walker v. Texas Division, Sons of Confederate Veterans (2015)
- A city may accept a donation of statue from one religious group and refuse to accept one from another – Pleasant Grove City v. Summum (2009)
- DiManno, Rosie (November 19, 2016). "New words trigger an abstract clash on campus". Toronto Star.
- Craig, Sean (September 28, 2016). "U of T professor attacks political correctness, says he refuses to use genderless pronouns". National Post.
- Beauchamp, Zack (2018-03-26). "Jordan Peterson, the obscure Canadian psychologist turned right-wing celebrity, explained". Vox.com. Retrieved 12 December 2018.
He said he would refuse to refer to transgender students by their preferred pronouns [...]. Experts on Canadian law said that Peterson was misreading the bill — that the legal standard for 'hate speech' would require something far worse, like saying transgender people should be killed, to qualify for legal punishment.
- Woolf, Daniel (March 12, 2018). "Why we invited Jordan Peterson to discuss compelled speech". The Globe and Mail. Retrieved July 26, 2018.
- Judgment, part III
- Ibid, part IV
- Ibid, Part II.
- Wodrow, Robert (1832). The history of the sufferings of the Church of Scotland from the Restoration to the Revolution (Vol IV ed.). Glasgow: Blackie. pp. 154–155. Retrieved 16 August 2018.
- Terry, Charles Sanford (1905). John Graham of Claverhouse, viscount of Dundee, 1648-1689. London: A. Constable. p. 197. Retrieved 16 August 2018.
- McCrie, Charles Greig (1893). The Free Church of Scotland : her ancestry, her claims, and her conflicts. Edinburgh: T. & T. Clark. pp. 50–51. Retrieved 17 August 2018.
- Bader, Hans (April 24, 2017). "Obama-Era DOJ Violated Free Speech Through Burdensome Demands for Disabled Access". CNS News. Retrieved 15 September 2017.
- Frankel, Alison (April 24, 2017). "When the government can make businesses talk". Reuters. Retrieved 15 September 2017.
- Nolan, Mike (February 24, 2017). "Orland Park vehicle sticker with Blue Lives Matter symbol stirs debate". Chicago Tribune. Retrieved 15 September 2017.
- Pomeranz, J. L. (March 2019). "Abortion Disclosure Laws and the First Amendment: The Broader Public Health Implications of the Supreme Court's Becerra Decision". Am J Public Health. 109 (3): 412–418. doi:10.2105/AJPH.2018.304871. PMID 30676798.
- Nord, James (25 January 2019). "Panel approves requiring abortion providers use state form". AP. Retrieved 3 June 2019.
- Bravin, Jess (23 June 2015). "Governors Seek to Curb Confederate Flag License Plates: Moves follow Charleston mass killing, Supreme Court ruling". Wall Street Journal. Retrieved 16 March 2019.