Courts

Hey Judge, I Thought That State-Compelled Speech Was A No No?

‘What a relief to have nothing to say, the right to say nothing, because only then is there a chance of framing the rare, or ever rarer, the thing that might be worth saying.’ - Gilles Deleuze, Negotiations

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sorry apology

(Image via Getty)

Now, I will be the first to admit that I did not do the best in Con Law — each day, I fought to stay awake and my win record looked nothing like Floyd “Money” Mayweather’s. But some things I managed to stay awake for. The War Powers arc was a fun time, as was the fast one the justices on the Court pulled where they granted themselves judicial review. Given the caveat that I didn’t CALI our legal lore, I’m pretty damned sure what this judge did counts as compelled speech. From ABA Journal:

A judge has ordered a North Carolina woman to correct the record and take responsibility online for a car crash that killed the other driver.

Judge Lou Trosch of the 26th Judicial District in Mecklenburg County, North Carolina, sentenced the woman, Breeana McClain of Charlotte, North Carolina, to probation without a driver’s license and imposed a suspended sentence last week, along with the extra conditions. She had pleaded guilty to involuntary manslaughter and had already spent 51 days in jail.

“I am going to order, as part of her judgment, that she demonstrates to you all on Facebook, on social media, on her GoFundMe page, that she takes responsibility for what she did,” Trosch said, according to reporting by WCNC. Trosch also ordered McClain to tell her story in traffic school.

That don’t sound constitutional, folks! I know that the judge’s response to the tragedy makes sense to normal people, but we have to remember that no matter how much we play at being normies, we aren’t. We’re lawyers, folks. Thankfully, some bright minds at Harvard saw through the temptation to be reasonable and have given the constitutionality of compelled apologies some thought. From Harvard Law Review:

Acting Chief Judge Bjorgen dissented in part. While he agreed with the panel that there was enough evidence to support a finding of guilt, he believed that the compelled letter of apology “offend[ed] the First Amendment.” He cited the Supreme Court’s rulings in West Virginia State Board of Education v. Barnette and Wooley v. Maynard  for the proposition that “at the least . . . the State may compel speech only if necessary to prevent a grave and imminent danger.” He decried the majority’s use of “a presumed rational basis” test, concluding that “[t]he First Amendment requires more from us.”  Instead, Acting Chief Judge Bjorgen argued that speech could be compelled only if the standards of Barnette were met — that is, if the apology were “necessary to prevent a grave and imminent danger.”  In this case, he found that “[t]he State’s showing [did] not remotely approach those standards.”

As unsavory as the fact patterns of this case and the case that led to the penning of this partial dissent are, I think that Judge Bjorgen is right. Being forced by the state to recant one’s guilt and shame an arbitrary number of times in traffic school — there is vagueness on the amount required, it could be once or it could be several times, either of which seem to be arbitrarily determined by the judge’s proclivities.

Compelling Ms. McClain to “demonstrate that she take responsibility for what she did” on Facebook, various social medias, and her GoFundMe… I know this can seem silly but these are our soap boxes and public squares. Sure, to the degree that her GoFundMe page fraudulently entices folks to give her money, order her to take it down and reimburse those who were defrauded. But you can do that without making the offender say things they don’t believe — or even if they do — don’t wish to state publicly. Now, for added credibility, I’m going to drop the part of the Harvard Law Review article that says what I believe for me. That’s the thing about academics, they move through arguments by a sort of immaculate conception. Anyhoo, here it is:

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Because a required apology involves making an offender say something he does not want to say, it implicates the Supreme Court’s compelled speech doctrine. This doctrine has generally held that the State cannot force its citizens to speak messages that they do not wish to deliver. Its strong, broad interdiction of coercing speech has been watered down by courts in the context of prison and probation, where constitutional rights are weakened. The justifications for reducing First Amendment rights in the context of compelled apologies, however, are insufficient to warrant the level of control sought by the government. There is another way to achieve many of the State’s objectives without putting to offenders the direct dilemma of either making an expression against their wishes or going to jail for their silence.

Yeah, that. Now, there are some arguments about the efficacy of apologies in theories of justice that have a focus on the restorative rather than the punitive. Great. I hear that. I still don’t really think that it applies. A vital component of apologies, good ones at least, is sincerity. Sincere apologies are freely given of one’s own consent. This freedom has to be at both the subjective and objective levels. That may sound heady, let me clarify. Subjectively, I may genuinely feel sorry about a thing and wish to convey that. But to say a thing freely requires objective freedom — a yes only means yes if you had the option to say no. Given the objective context, I am being forced to apologize, that hinges on the freedom of my speech. How restorative is the apology really if the receiver knows that, despite how sincere I appeared to be in the moment, I was only apologizing because the Judge told me to?

State v. KH-H Washington Court of Appeals Upholds Apology Requirement of Juvenile’s Sentence [Harvard Law Review]
Judge Orders Defendant To Tell Truth On Social Media After She Blamed Victim For Car Crash [ABA Journal]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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