The First Amendment, The Right Not To Speak And The Problem Of Government Access Statutes

Abstract

The dual principles of promoting the marketplace of ideas and protecting individual autonomy lie at the core of the First Amendment. When the government assumes an affirmative role by opening opportunities for public speech, it places individuals\u27 negative liberties, such as the right not to speak, at risk. This conflict cannot be avoided by analyzing compelled speech outside of the First Amendment; the autonomy promised by the Bill of Rights and repeatedly affirmed by Supreme Court jurisprudence protects the right not to speak. Scholars, jurists, and practitioners therefore should pay close attention to the right not to speak when the government pursues affirmative policies of widening access. In so doing the government may not ignore the negative speech rights of private citizens