Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 25 (1997)

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Cite as: 521 U. S. 457 (1997)

Souter, J., dissenting

protectible as a speaker's chosen medium of commercial enterprise, it becomes subject to a second First Amendment principle: that compelling cognizable speech officially is just as suspect as suppressing it, and is typically subject to the same level of scrutiny. In Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988), for example, the State argued that "the First Amendment interest in compelled speech is different [from] the interest in compelled silence," and ought therefore to merit a more "deferential test." Id., at 796. We rejected that argument out of hand: "There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." Id., at 796-797; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) ("Since all speech inherently involves choices of what to say and what to leave un-said, one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say" (citations and internal quotation marks omitted)); Wooley v. Maynard, 430 U. S. 705, 714 (1977) ("[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all"); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633 (1943) ("[I]nvoluntary affirmation c[an] be commanded only on even more immediate and urgent grounds than silence").

As a familiar corollary to the principle that what may not be suppressed may not be coerced, we have recognized (thus far, outside the context of commercial speech) that individuals have a First Amendment interest in freedom from compulsion to subsidize speech and other expressive activities

481

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