Compulsory Speech:
The Silent Side of the First Amendment

An noted athlete sits out the Pledge of Allegiance...  Since this was done in the context of his work for a private employer, responses to this act of expression have more to do with contract law than with the First Amendment. However, the incident has provided a grand opportunity for the public to discuss whether the First Amendment to the United States Constitution protects your right to not say anything at all....

The First Amendment to the United State Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press…”.  The First Amendment is most commonly invoked to support the unfettered expression of ideas, such as voicing political opinion or creating artistic and literary works. However, First Amendment law also holds that “free speech” means that the government cannot compel you to say things that you do not wish to say. The freedom of speech includes the freedom of silence.

A Small Vermont Example...

The issue of compulsory speech rose in Vermont a few years ago in regards to the new vaccination exemption law. Last winter, the Vermont legislature amended the state’s long-standing statutory process for enrolling unvaccinated children in school.  The law previously required parents to submit to the school a statement “in writing … that the person, parent or guardian…has religious beliefs or philosophical convictions opposed to immunization.”

The amended law required parents to annually complete a form created by the Vermont Department of Health which not only attest to a religious or philosophical opposition to immunizations, but also attesting that the parent or guardian:

--has reviewed and understands evidence-based educational material provided by the department of health regarding immunizations, including information about the risks of adverse reactions to immunization;

--understands that failure to complete the required vaccination schedule increases risk to the person and others of contracting or carrying a vaccine-preventable infectious disease; and

--understands that there are persons with special health needs attending schools and child care facilities who are unable to be vaccinated or who are at heightened risk of contracting a vaccine-preventable communicable disease and for whom such a disease could be life-threatening.

A number of parents, through Attorney Mitch Pearl of Langrock, Sperry and Wool in Middlebury, have objected to the Vermont Department of Health, asserting that the form comprises compulsory speech in violation of their First Amendment rights because the latter two provisions of the form require parents to swear or affirm that they hold certain beliefs about the nature, cause and transmission of disease and the role and effect of vaccinations.

As Attorney Pearl masterfully argued in his letter to the Department of Health, the issue is not a question of the state of scientific, empirical study on vaccinations and disease.  In other words, it does not matter whether or not the two paragraphs in question are true. The Constitutional issue is whether the State can compel individuals to attest to something they may not personally believe, as a prerequisite for participating in a governmental program—in this case, their children’s schooling.

The Pledge of Allegiance

Compulsory speech issues relative to schooling are not new. In 1943, the U.S. Supreme Court ruled in West Virginia State Board of Education v. Barnette that under the First Amendment, public school students cannot be forced to salute the flag or say the pledge of allegiance. An interesting facet of that case is that the Supreme Court did not hinge its decision on protection of the students’ rights of religious expression, even though the students’ families had brought the lawsuit on the grounds that, as Jehovah’s Witnesses, their religion precluded them from saluting icons or partaking in oaths.

Had the Supreme Court ruled on grounds of religious exemption, every student asserting their right to abstain from reciting the pledge would need to demonstrate adherence to a religion which has tenets precluding such an action. By basing their decision on grounds of compulsory speech, the Supreme Court acknowledged a broad-based Constitutional protection which applies regardless of the content of the statement or the nature of the religion of the person asserting the right. 

[This author was unaware of the 1943 Supreme Court ruling when she refused to say the pledge of allegiance in kindergarten in 1969 out of her belief that it seemed inappropriate to engage in such acts of nationalism while so many young men were dying in the Viet Nam war. The teacher’s screaming invectives suggest that she, too, was not up-to-date on the Supreme Court decision. The school principal, however—a military veteran--was familiar with the case, and quickly negotiated a compromise by which said kindergarten student would stand respectfully silent while others who chose to do so recited the pledge. It was, as they say, a teaching moment.]

Other Compulsory Speech Cases

School is not the only venue for compulsory speech conflicts. For example, in 1977, the U.S. Supreme Court ruled in Wooley v. Maynard that the State of New Hampshire could not compel its citizens to display the “Live Free or Die” logo on their license plates. Regardless of the popularity or populist sentiment of the expression, the government cannot force citizens to vocalize or display a message which they do not care to express.

The Supreme Court has been less impressed by First Amendment arguments asserting that citizens cannot be compelled to contribute funds that pay for a government-sponsored message with which the citizen may disagree. In 2005, the Supreme Court determined that the First Amendment rights of grass-fed beef growers were not violated by the terms of the 1985 Beef Act, which requires all cattle raisers to pay $1-per-head into a fund which engages in the generic eat-more-beef advertising campaign. Specialty beef ranchers did not want to participate in generic marketing, as it undercuts their efforts to portray grass-fed beef as better than other categories of beef. The Supreme Court ruled that much as citizens’ tax dollars can be used to buy library books or fund wars with which the taxpayer may not agree, the government may compel payments into a government ad campaign for which the contributor may disagree with the message.

Conclusion

The Vermont immunization form issue was resolved, at least for the moment, after thoughtful dialogue led to changes in the required form.  The issue will no doubt arise again in this immunization context, however, as across the nation the pressure mounts to make failure to comply with these programs punishable by civil and even criminal penalties.  

In other spheres of our lives, compulsory speech issues will likely be increasing as polarization politics adopts leads increasingly to 'litmus tests' of patriotism and loyalty.  False dichotomies are poor logic, and an even poorer basis for democratic governance.  Requiring one to swear to a specific mindset or phrase to obtain government jobs or services leaves the realm of democracy all together.