By Jeremy J. Broggi,  a partner with Wiley Rein LLP in Washington, DC who serves as the WLF Legal Pulse’s Featured Expert Contributor on the First Amendment.

There seems to be no shortage of topics on which federal bureaucrats would like to force private companies to repeat the government’s favored message.  In the latest example, the Department of Defense and other agencies are contemplating a rule that would require major federal suppliers to report CO2 emissions and “climate risk” using controversial metrics developed by a third-party organization that has publicly stated its opposition to carbon-based energy sources.1  The Department’s proposal appears to be yet another example of government choosing to impose a speech mandate when it may lack the authority or political will to regulate.

It wasn’t always this way.  “If there is any fixed star in our constitutional constellation,” the Supreme Court could once declare to broad agreement and acclaim, “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 Today, however, officials both high and petty often appear to love nothing more than forcing private citizens and private companies to confess the latest government orthodoxy, including on issues of public concern.  And special interests that agree with the chosen message are too often eager to cheer these officials on without regard to First Amendment rights or consideration that the political tables may turn.

Take the proposed rule.  The Department of Defense acknowledges the proposal will not directly further its supposed regulatory objective, candidly conceding that the proposed disclosure mandate “does not reduce emissions and climate risk.”3  Instead, the Department says that by requiring its suppliers to report their CO2 emissions and climate risk—regardless of whether its suppliers agree with the metrics and models the rule endorses—“the Federal Government will communicate to its prospective contractors and their supply chains that transparent disclosure and management of supply chain [greenhouse gas] emissions and climate risk can be a matter of social license to operate.”4  “[T]he expectation of increased public transparency and accountability,” the Department says, “may prompt suppliers to take action” to address climate change.5  The goal, in other words, is to leverage private speech to influence public behavior.

The point here is not to debate whether the Department of Defense should be combatting climate change.  To be sure, there are valid reasons to doubt the wisdom of the Department’s focus—as the Wall Street Journal editorialized, the People’s Liberation Army will surely be pleased if the Department adopts a climate policy that increases the cost of U.S. national defense.  These are tradeoffs that the American people, through their elected representatives, may decide are worthwhile.  But the First Amendment generally prohibits government from pursuing its policy objectives by telling people what they must say, including what they must say about climate change.

The potential First Amendment problem with the proposed rule is not mitigated solely because federal procurement is involved.  For decades, federal courts have recognized that performing government contracts does not strip companies of their First Amendment rights.6  And federal courts have held that forcing companies to disparage their own products and services is “constitutionally offensive.”7

A federal district court enjoined a Federal Acquisition Regulation that would have required “government contractors to ‘publicly condemn’ themselves by stating that they have violated one or more labor or employment laws.”8  In reaching that conclusion, the court described as “settled” the principle that “government contractors are entitled to the same First Amendment protections as other citizens, and the government’s procurement role does not entitle it to compel speech as the price of maintaining eligibility to perform government contracts.”9

The Department should bear that lesson in mind as it considers whether to compel individual federal suppliers to confess responsibility for what it acknowledges is a global issue.  Even companies that are committed to fighting climate change and which favor voluntary disclosures may believe that the metrics and models the proposed rule would endorse to calculate CO2 emissions and climate risk would misstate their level of culpability.  If the final rule nevertheless compels federal suppliers to mouth support for the government’s attribution of responsibility despite well founded and good-faith disagreements with that message, the rule will abridge freedom of speech under the First Amendment.

The best result is for federal bureaucrats to reject the impulse to compel private speech.  The philosophical commitment underlying the First Amendment—that is, the belief that, as Justice Holmes memorably put it, “the best test of truth is the power of the thought to get itself accepted in the competition of the market”10—is undermined whenever government puts its thumb on the scale to tilt speech in its preferred direction.

Notes

  1. Federal Acquisition Regulation: Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk, 87 Fed. Reg. 68312 (Nov. 14, 2022) (proposed rule).
  2. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
  3. 87 Fed. Reg. at 68318.
  4. 87 Fed. Reg. at 68320.
  5. 87 Fed. Reg. at 68318–19.
  6. See, e.g., Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013); O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712 (1996).
  7. See, e.g., Nat’l Ass’n of Manufacturers v. SEC, 800 F.3d 518, 530 (D.C. Cir. 2015).
  8. Associated Builders & Contractors of Se. Texas v. Rung, No. 1:16-cv-425, 2016 WL 8188655, at *10 (E.D. Tex. Oct. 24, 2016).
  9. Id. at *11.
  10. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).