Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line

The most conservative sentence in American constitutional law was written during a world war, by a Supreme Court justice, about a schoolchild who would not salute a flag. It has nothing to do with pronouns. It has everything to do with them. If you want to understand where the First Amendment draws the line on compelled words, start with the child, not the professor.

The claim I want to examine is this: that a professor or an employee who declines to use a particular person's preferred pronouns is guilty of harassment, and may be punished for it by the state or by a public institution. I will state the case for that view as its defenders would, then answer it with four decisions of American courts. My conclusion is narrow. Courtesy is a virtue, and it should be freely given. A command from the government to say particular words is something else, and the Constitution has been clear about the difference for eighty years.

The terms

Let me define what I mean, because the quarrel is usually fought over undefined words.

Compelled speech. A rule that requires a person to say, display or affirm a message that is not their own. It is the mirror image of censorship. Censorship says: you may not say this. Compulsion says: you must say this.

Harassment. In employment law and in education law, harassment is conduct that is unwelcome and that is severe or pervasive enough to create a hostile environment. The Supreme Court stated the standard for workplace sex-based harassment in Harris v. Forklift Systems (1993): conduct that is severe or pervasive enough to create an environment a reasonable person would find hostile or abusive. The word that matters is severe or pervasive. Not impolite. Not disagreeable.

State action. The First Amendment limits the government. A public university, a public school and a government agency are the government. A private company is not, and its rules are governed mostly by contract, state law and its own conscience. This distinction does much of the work in what follows.

The view at its strongest

Here is the case for requiring the use of preferred pronouns, as I would state it if I were its advocate and wanted its defenders to say, "yes, that is our argument."

A person's name and the words used to address them are not trivial. A name is the most basic form of recognition one person gives another. Refusing to use someone's chosen name or pronoun, on this view, is a repeated, deliberate act that tells the person that the speaker does not accept who they are. For a student who is already vulnerable, a professor's refusal in front of a classroom can feel like humiliation. A university, which has duties to every student, is entitled to maintain a classroom in which every student can participate without being singled out. Anti-discrimination law has always required institutions to prevent behaviour that drives people out of education or work, and a persistent refusal to use a person's name can be part of a pattern that does so.

That is a serious position, held by serious people, and I do not dismiss the interest behind it. Students are entitled to a classroom in which they can learn. Nobody should be made to feel they do not belong.

The answer, in numbered points

One: the government may not force a citizen to say what the government wants said. The foundation is West Virginia State Board of Education v. Barnette, decided on June 14, 1943. A West Virginia rule required students to salute the flag and recite the Pledge, and students who refused, including children from the Jehovah's Witnesses, were expelled. The Court held that the rule violated the First Amendment. Justice Robert Jackson wrote: "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." The Court overruled its own decision of just three years earlier, which had gone the other way. It did so in the middle of the war, when the pressure for unity was at its greatest. If a state may not order a child to say a pledge in wartime, it requires a very strong reason to order an adult to say a word in peace. The full passage is read slowly in Barnette's Fixed Star, Reading the 1943 Opinion on the Pledge Passage by Passage.

Two: the rule covers messages we find harmless, and it does not depend on the content. In Wooley v. Maynard (1977), New Hampshire required drivers to display the state motto, "Live Free or Die", on their license plates. George Maynard, a Jehovah's Witness, objected to the message on moral and religious grounds, covered the motto on his plates, and was prosecuted. The Court held that the state could not require him to carry the message on his own vehicle. The motto is perfectly respectable, and that is the point. Nobody was being asked to recite anything sinister. New Hampshire merely wanted a free man's licence plate to double as a billboard, which is the sort of efficiency that only a government could dream up. The right not to speak is not reserved for offensive messages. It protects the objector precisely because the message sounds innocent to everyone else.

Three: the rule does not give way merely because the speech is expressive work or the cause is popular. In 303 Creative LLC v. Elenis (2023), the Court held that Colorado could not use its public accommodations law to compel a website designer to create custom expressive work that conveyed a message she did not wish to convey, in that case about marriage. The Court's holding was grounded in the principle that the government may not use anti-discrimination law to force a person to speak. The case was brought by a designer whose views many Americans reject, and the Court's reasoning applies to people on every side of every dispute. A professor who is told to use words he thinks are false is in a position analogous to the designer who is told to design a message she thinks is false. The detail is in 303 Creative Was About Compelled Speech, Not a License to Refuse Customers.

Four: courts have applied the rule to a professor in this very setting. In Meriwether v. Hartop (Sixth Circuit, 2021), Nicholas Meriwether, a philosophy professor at Shawnee State University in Ohio, was disciplined after he declined a request to address a student with the pronouns the student preferred. According to the court's opinion, he had offered a compromise: he would use the student's last name. The university's discipline continued. The Sixth Circuit reversed the dismissal of the professor's free-speech and free-exercise claims and sent them back to the trial court, and said that the university's interest was comparatively weak, noting that the last-name compromise had worked for a semester and that nothing showed the professor's speech impaired the school's operations. The court reasoned that a public university's classroom is not an exception to the rule against compelled speech, and it treated the pronoun question, in the context of a class, as speech on a matter of public concern. It also found a plausible inference of religious hostility in the university's shifting positions. I note that this was a decision of one federal appeals court, and that it dealt with a public university and a particular set of facts. It is not a ruling that applies to every employer or every setting.

Where the line actually falls

Now let me draw the line carefully, because careless writers on both sides smear it.

Courtesy freely given

Most people use a name or pronoun that a person asks them to use, as a matter of ordinary courtesy, and no law requires it. A teacher who calls a student by the name the student prefers is exercising the same freedom as a teacher who calls a student "Mr." or "Ms." There is nothing to object to in courtesy. It is how decent people behave, and it is how a free society works: by manners, not by mandate.

I would go further. A conservative who believes in the dignity of every person, as the Judeo-Christian tradition teaches, has every reason to be gracious in a hard case. Many people who disagree about gender policy use the courteous form out of kindness, and they should be respected for it.

Words the state orders

The constitutional line is crossed when a government actor, a public university or a state agency, turns the courtesy into a command, backed by discipline or a fine, and requires a person to utter words that express a view about contested questions. At that point the state is no longer asking for politeness. It is declaring an orthodoxy.

The test I would propose is simple. Ask three questions of any such rule. Is the actor the government? Does the rule require the person to say or affirm particular words, not merely refrain from abuse? And would the rule be acceptable if the orthodoxy were one you disagreed with? If the answers are yes, yes, and no, you have a compelled-speech problem, and your own side's turn at the wheel will come. In Washington the wheel changes hands about as predictably as the weather, and the new driver always discovers that the horn works.

What stays prohibited

A great deal of conduct remains outside the First Amendment, and nothing here denies it. A professor who targets a student with repeated insults, who singles the student out for ridicule or who refuses to teach them is not exercising a protected freedom. Conduct that is severe or pervasive harassment under the law remains actionable. Threats are not protected. A teacher who punishes a student for his views is acting unlawfully. The distinction I am drawing is between abuse, which is a form of conduct that the law may regulate, and a refusal to say words one does not believe, which the First Amendment protects. It is a narrow rule, and it is meant to be. (Constitutional lines are like property lines: neighbours who have never walked them are the ones who shout loudest about where they run.)

The strongest objection to my answer

The best reply from the other side goes like this: you say that this is a free-speech question, but a classroom is a place where the university has a legitimate interest in setting rules. Professors already follow many requirements about what to say and how to say it, from the syllabus to the grading policy, and no one calls those unconstitutional compulsions. If a university may tell a professor to teach a particular course in a particular way, why may it not tell him to address students in a particular way?

That deserves an answer, and it has one. The Supreme Court has recognised that when public employees speak as part of their official duties, the government has wide control over what they say, and the law of academic freedom adds a complicating factor in universities. But the university's control over its curriculum is not the same as power to compel a professor to affirm a contested proposition as his own. The distinction is between the content the employer is paying for and a personal declaration of belief. A requirement to teach the assigned course is a job requirement. A requirement to say that a certain contested statement is true, in the speaker's own voice, is a pledge. The line between those is the line the Court drew in Barnette and again in Janus v. AFSCME (2018), where it held that public employees could not be forced to subsidise a union's speech. The government can run an institution. It cannot require a citizen's confession.

Another reply says that this rule helps only one side. It does not. A rule against compelled speech protects the atheist forced to recite a prayer, the Christian forced to endorse a message about marriage, the progressive forced to sign a statement she thinks is wrong, and the professor who is told what to say about pronouns. It is the one rule that every side will need when the other side is in power.

For a related example, and one where conservatives have an obvious stake, consider the requirement that job applicants at universities submit statements of commitment to particular ideas. I discuss it in DEI Statements Were Loyalty Oaths, and the Old Oath Cases Show Why. And the broader pattern of lists of forbidden and required words is taken up in Language Policing Turns Ordinary Words Into Offences, and It Never Ends.

Private employers, and what this post does not say

I should be clear about what I am not saying. The First Amendment does not govern private employers. A private company may set rules about how employees address one another, and the law of employment, which varies by state, will shape what is permitted. I make no claim about what such rules should be, except that a business owner has the same right to run his firm as an employee has to look for another one.

I am also not offering legal advice to any reader in any particular job. If you are in a dispute with an employer or a school, consult a lawyer who knows your state's law. This post describes the principle. It does not apply it to your facts.

And I am not addressing the separate and difficult questions of how governments should handle sports categories or medical policy for minors. Those are different subjects and are discussed elsewhere: Fairness for Female Athletes Is a Civil Rights Argument, Made With Respect on competition, and Who Decides Gender Policy for Minors? The Case for the Legislatures on who decides policy for young people.

The Founders' view of conscience

The tradition behind this goes back past 1943. In 1786 the Virginia Statute for Establishing Religious Freedom, written by Thomas Jefferson and passed through the Virginia legislature under the leadership of James Madison, declared that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical. I give the sense of the statute, not its full words, and I recommend reading it. The principle is that the government has no business forcing a person to affirm what he does not believe. The First Amendment, ratified in 1791, took that principle into the national charter.

That tradition is neither left nor right. It is the idea that a free people is a people whose conscience is its own, and that the state's remedy for disagreement is persuasion and not command. If we defend it when it protects the people we like, we have to defend it when it protects the people we do not.

The case in brief

1. The government may not compel citizens to speak what it prescribes: Barnette (1943) held that no official can force citizens to confess by word or act their faith in an orthodoxy.
2. The rule protects harmless-sounding messages as much as offensive ones, as Wooley v. Maynard (1977) showed, and it reaches expressive work, as 303 Creative v. Elenis (2023) held.
3. In Meriwether v. Hartop (Sixth Circuit, 2021), a court applied the principle to a public university professor who declined to use a student's preferred pronouns, though the ruling concerned one setting and set of facts.
4. Courtesy freely given is a virtue, abuse remains actionable, and the line falls where the state turns a courtesy into a command to utter contested words.

What you can do: read Justice Jackson's opinion in West Virginia v. Barnette in full, then check whether your state university system or school district has a written speech or pronoun policy, and read it.