Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses. 1
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. 2 Speaking in the context of religious freedom, the Court said that, although the freedom to act on one’s beliefs could be limited, the freedom to believe what one will
is absolute. 3 But matters are not so simple.
Flag Salutes and Other Compelled Speech
One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Gobitis, 4 the Court had upheld the power of Pennsylvania to expel from its schools certain children – Jehovah’s Witnesses – who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance.
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. 5 But three years later, in West Virginia State Bd. of Educ. v. Barnette, 6 a six-to-three majority of the Court overturned Gobitis. 7 Justice Jackson, writing for the Court, chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted
a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks. 8 The power of a state to follow a policy that
requires affirmation of a belief and an attitude of mind, however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual
creates a clear and present danger that would justify an effort even to muffle expression. 9
The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard, 10 which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto
Live Free or Die. 11 Acting on the complaint of a Jehovah’s Witness, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment. 12 Nor was there a constitutional violation where compulsory fees were used to subsidize the speech of others. 13
Other governmental efforts to compel speech have also been held by the Supreme Court to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations, 14 a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers' criticism and attacks on their records, 15 an Ohio statute that prohibited the distribution of anonymous campaign literature, 16 a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message – in this case support for gay rights – that the organizers did not wish to convey, 17 and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.  18
The principle of Barnette, however, does not extend so far as to bar a government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution. 19 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath. 20
By contrast, the Supreme Court has at times found no First Amendment violation when government compels the disclosure of information in a commercial or professional setting. Regarding compelled disclosures in commercial speech, the Court held that an advertiser's
constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser's rights are reasonably protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right. 21
Moreover, the Court has upheld regulations of professional conduct that only incidentally burden speech. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court considered a law requiring physicians to obtain informed consent before they could perform an abortion.  22 Specifically, the law at issue in Casey required doctors to tell their patients prior to an abortion about the nature of the procedure, the health risks involved, the age of the unborn child, and the availability of printed materials from the state about various forms of assistance.  23 In a plurality opinion, the Court rejected a free-speech challenge to the informed consent requirement, viewing the law as "part of the practice of medicine" and an incidental regulation of speech.  24
However, the Court has cautioned that reduced scrutiny for compelled commercial and professional speech is limited to particular contexts. For example, limited scrutiny of compelled commercial disclosures is restricted to requirements that professionals provide "purely factual" and "uncontroversial information" in their commercial dealings.  25 As a result, in considering the constitutionality of a California law requiring certain medically licensed, pro-life crisis pregnancy centers to disclose information to patients about the availability of state-subsidized procedures, including abortions, the Court in National Institute of Family and Life Advocates v. Becerra concluded that the Zauderer rule for compelled disclosures of purely factual, uncontroversial information was inapplicable.  26 Specifically, the Court noted that the notice requirements were unrelated to services that the clinics provided and that the notice included information about abortion, "anything but an 'uncontroversial' topic."  27
In that same ruling, the Court rejected the argument that the California law's disclosure requirements were comparable to the informed consent regulations upheld in Casey.  28 In contrast to the law in Casey, the National Institute of Family and Life Advocates Court concluded that the disclosure requirements were not tied to a particular medical procedure and did not require the disclosure of information about the risks or benefits of any medical procedures the clinics provided.  29 In this sense, the California law, unlike the informed consent law in Casey, did not incidentally burden speech, but instead "regulat[ed] speech as speech."  30
The Supreme Court has also found no First Amendment concern with respect to the compelled labeling of foreign political propaganda. Specifically, in Meese v. Keene, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign
political propaganda, he must label such material with certain information, including his identity, the principal's identity, and the fact that he has registered with the Department of Justice. The Court found that
Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda. 31