We had occasion to address a compelled speech claim in
Axson–Flynn v. Johnson, 356 F.3d 1277 (10th Cir.2004), in which a University of Utah theater student alleged a First Amendment violation because she was required to utter certain swear words as part of a script.
Id. at 1281–83. We stated that, even though
Barnette and
Wooley involved the state compelling individuals to espouse its ideological message, those cases did not require the speech in the theater script to be ideological for the student to receive compelled speech protection.
Id. at 1284 n. 4. We explained that “First Amendment protection does not hinge on the ideological nature of the speech involved.”
Id. “Likewise, the First Amendment's proscription of compelled speech does not turn on the ideological content of the message that the speaker is being forced to carry.”
Id. The constitutional harm of compelled speech—“being forced to speak rather than to remain silent”—“occurs regardless of whether the speech is ideological.”
Id. We also found it difficult to divine a standard for determining when speech is ideological and when it is not.
Id.