First Amendment Shouldn’t be Used as an Excuse

In the usual free speech case, someone claims that his or her right of free expression is being infringed. There is another side to this constitutional coin, a “negative” right, meaning the right not to be compelled to speak.

This right was the basis for a 1943 decision where the Supreme Court held that the state could not require elementary school students to salute the American Flag. In other words, school children, and the rest of us, have a right in certain circumstances to refrain from speaking and remain silent.

Last month I wrote about the wedding cake case, where Jack, the Colorado baker, refused on religious grounds to bake a wedding cake for a same-sex wedding party. Last Tuesday, the Supreme Court heard arguments from both sides, and like most Supreme Court cases, this one highlights the tension between constitutional rights. Jack argues that his cakes are a form of expression, and that the Court should overturn the decision of the Colorado courts based on his right not to “speak.”

As is often the case with legal arguments, this one requires taking something as true that is less than obvious.

When you go to a wedding party and look at the cake, do you think to yourself, “That baker approves of this marriage?” According to Jack, you do. I disagree. It would be different, of course, if Jack were being forced to inscribe a pro-same-sex marriage message on the frosting.

The New York Times recently called this a “rear guard action” by religious objectors who, having lost the equal protection battle, have moved to the free speech playing field in order to challenge marketplace equality afforded by state public accommodation laws.

The problem with the strategy of using the “negative speech” principle as a way of advancing religious beliefs is that it treats free speech as an absolute right when, of course, it is not. Saying some things can get you in trouble, such as falsely shouting “Fire” in a crowded theatre, or defaming Joe the butcher by telling your neighbor that “he puts his thumb on the scale,” when he does no such thing. And some things you can be required to say, for example that a certain prescription medication may have various side effects.

This subject is coming up again in a case that the Supreme Court has agreed to hear in 2018. The case involves a California law that requires religiously motivated, pro-life licensed “crisis pregnancy centers” to post a notice providing contact information for free or low-cost abortion services. The National Institute of Family and Life Advocates is appealing from a decision by the Ninth Circuit Court of Appeals, arguing that under the First Amendment right not to speak, the state can’t make them post the notice. The real objection is religious in nature, but the argument in court is that it compels certain speech.

Using the First Amendment as a shield against compliance with the law is, I’ll admit, clever lawyering. Yes, the argument goes, a woman has a constitutional right to obtain an abortion, but if we don’t believe in that right, we should not have to post a notice that might lead someone to exercise that right.

Again, it’s not so obvious, at least to me. When someone sees the notice posted on the wall, does she think the openly pro-life clinic is being hypocritical and really wants her to terminate her pregnancy? I doubt it.

More importantly, no one is telling the California clinic employee or volunteer that she has to tell the patient, “You should get an abortion,” or that she can’t say, “The law requires me to give you this information, but I’m against abortion and hope you don’t go there.”

The First Amendment is “content-neutral,” meaning that government can’t tell us what to say or think, but that doesn’t mean that government is powerless to protect human dignity or to promote public health options. I don’t doubt that Jack the Baker and those who operate the anti-abortion clinic are sincere in their beliefs. But I am against the notion that freedom to speak – or not to speak – can be used as an excuse for refusing to honor a person’s rights, simply because in a particular case someone doesn’t believe in those particular rights.

When the Supreme Court outlawed school segregation as a denial of equal protection of the law, many citizens were upset. Did they ask the Supreme Court to exempt their children under a First Amendment negative right of association, arguing that their children had a right not to be in the same classroom as black children? No, and if they had, they would have been laughed out of court.

The whole point is to accommodate one right with another. Yes, that will leave some people disappointed, even angry, but the idea of the Constitution is to promote freedom, not to make everyone happy.

2017-12-13T16:08:45+00:00By |