Source – theconversation.com<\/p>\n
New Hampshire\u2019s state motto \u201cLive free or die\u201d is, for many residents, a stirring evocation of the independent spirit of colonial America.<\/p>\n
But not all New Hampshirites agree with this well-known slogan that is emblazoned on the state\u2019s license plates. In 1975,\u00a0George Maynard was sent to jail\u00a0because he didn\u2019t believe in it.<\/p>\n
Maynard and his wife were Jehovah\u2019s Witnesses, a Christian denomination that teaches that true believers will enjoy eternal life. The couple felt that\u00a0the state\u2019s motto violated this tenet. So Maynard covered up the \u201cor die\u201d part on his vehicles\u2019 license plates.<\/p>\n
Police gave him three different tickets for illegally altering the plates. When he refused to pay the fines, which totaled US$75, he was given a 15-day jail sentence.<\/p>\n
Maynard then filed a lawsuit that reached the U.S. Supreme Court. In 1977, the\u00a0Supreme Court ruled that the First Amendment\u00a0gave Maynard the legal right to cover up those two words. In other words, the First Amendment \u2013 which guarantees the right to free speech \u2013 can also give people the right to remain silent.<\/p>\n
I am\u00a0a legal scholar, so when I learned that the Supreme Court will decide two right-to-silence cases this term the Maynard case came to mind.<\/p>\n
The Maynard decision was not the first time the court ruled in favor of a Jehovah\u2019s Witness\u2019\u00a0right to be silent. Both decisions hinge on the justices\u2019 determination that the First Amendment includes, in the court\u2019s words, the right\u00a0\u201cto avoid becoming a \u2018mobile billboard\u2019 for the State\u2019s ideological message.\u201d<\/p>\n
It may sound contradictory to say the right to be silent flows from the right to speak, but it is not.<\/p>\n
The First Amendment\u00a0protects a person\u2019s right to convey\u00a0his own message, to voice her own ideas and not to be compelled to publicly disclose personal beliefs and associations. When the government tries to\u00a0compel a person to speak its message, these rights are seriously damaged.<\/p>\n
The right to free speech is likewise violated when people are required to associate themselves with an idea with which they disagree.<\/p>\n
This issue first came before the Supreme Court in 1943, when a\u00a0West Virginia school board expelled a Jehovah\u2019s Witness student\u00a0for refusing to recite the Pledge of Allegiance because saluting the American flag salute would violate the biblical command \u201cThou shall not bow down to graven images.\u201d<\/p>\n
The court, then lead by Chief Justice Robert H. Jackson, agreed. The First Amendment prevents the government from\u00a0forcing citizens to express patriotism by saluting the flag.<\/p>\n
\u201cIf there is any star fixed in our constitutional constellation,\u201d\u00a0Jackson wrote, \u201cit is that no official, high or petty, can prescribed that what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.\u201d<\/p>\n
The first case that will return this issue to the Supreme Court\u2019s scrutiny in 2018 is\u00a0National Institute of Family and Life Advocates v. Becerra. It involves religiously based \u201ccrisis pregnancy centers\u201d in California that try to discourage women from seeking an abortion.<\/p>\n
New legislation requires those centers to post notices about\u00a0other women\u2019s health services available in the state, including abortions.<\/p>\n
The pregnancy centers have sued the state, contending that the law forces them to speak the government\u2019s message. California contends that the law is a reasonable regulation of licensed medical facilities.<\/p>\n
It will be up to the Supreme Court to decide if the clinic\u2019s claimed right \u201cto avoid becoming the courier for the State\u2019s ideological message\u201d is a valid interpretation of the First Amendment.<\/p>\n
The second right-to-silence case before the Supreme Court this term,\u00a0Janus v. American Federation of State and County Municipal Employees, tests the related guarantee that people cannot be forced to be associated with an idea they do not hold.<\/p>\n
Forty years ago,\u00a0the court ruled that a union\u00a0can require non-members to pay an \u201cagency fee\u201d for their representation by the union. The union may not use any part of the agency fee to advance ideological purposes unrelated to the union\u2019s primary function of collective bargaining.<\/p>\n
Now, with Janus v. AFSCME, non-union public employees contend that the required agency\u00a0fee violates their First Amendment rights\u00a0because it is not possible to separate bargaining collectively from advancing ideological purposes.<\/p>\n
For government workers, they say, issues like\u00a0salaries, pensions and benefits are inherently political for government workers. And some employees may not agree with the union\u2019s position on those matters.<\/p>\n
The unions contend that since all employees benefit from\u00a0the union\u2019s collective bargaining efforts, allowing workers to opt out of paying the agency fee would enable \u201cfree riders.\u201d<\/p>\n
Regardless of how the court rules in these two cases, the American right to silence is on trial this year. Both Janus and National Institute of Family and Life Advocates will be decided by the end of June, when the court closes its present term.<\/p>\n