John Banister, University of Georgia, On Performativity and Compelled Commercial Speech: Toward a Workable StandardBanister, J (2022). On performativity and compelled commercial speech: Toward a workable standard. Communication Law Review 22.35 Pages Posted: 15 Dec 2022John BanisterUniversity of GeorgiaDate Written: November 30, 2022AbstractContemporary compelled speech doctrine is untenable in the face of increasing tensions between public accommodations laws and First Amendment protections for free speech and free exercise of religion. Religious liberty advocates can frame constitutional challenges to anti-discrimination laws as compelled speech claims because current precedent fails to satisfactorily operationalize the performative dimensions of expression. Controversies about how to balance free expression with public accommodations laws call for a reimagining of compelled speech doctrine. This paper considers how Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) illustrates the problems with current compelled speech precedents and begins to outline a new standard that might protect core First Amendment principles and the equality interests at stake. Specifically, I assess the arguments advanced in concurring opinions written by Justices Thomas and Kagan through the lens of performativity to illustrate the insufficiency of current doctrine. I then argue for a particularity standard that would provide a more workable test to better balance the demands for equality in public accommodations with freedoms of speech and religious exercise.