19 Pages Posted: 20 Nov 2007
Date Written: November 9, 2007
The Humanities Center of Wayne State University presented its Fall Symposium with the theme, Silence and Silencing. At this symposium, Professor Sedler presented a paper on "The First Amendment Right of Silence". The thesis of the paper is that in a number of respects, the First Amendment recognizes that the values embodied in the constitutional protection of freedom of speech and freedom of association mandate a right of silence. Thus, in answer to the question raised at the symposium, What does the law have to say about silence, the author says that in a number of contexts, the law of the First Amendment protects the right of silence. In the paper, the author discusses five contexts in which the First Amendment protects the right of silence.
(1) The right to refuse to disclose one's beliefs and associations to the government. The Supreme Court has made it clear that persons are entitled to refuse to answer questions about their organizational membership and about their beliefs and associations unless the government could demonstrate a compelling interest in obtaining that information, which the government cannot do. Thus, in the face of the government's demands that a person disclose one's beliefs and associations, the person can reply, I choose to be silent.
(2) The right to speak anonymously without disclosing one's identity. This right is an admixture of the right to speak and the right of silence. The speaker speaks the message, but is entitled to shield the speaker's identity while speaking the message. The right to speak anonymously advances the core purposes of the First Amendment, since it ensures that people will not be deterred from speaking for fear of reprisal by the government or by other people.
(3) The right not to be compelled to speak the government's message.
This aspect of the right of silence protects the right of schoolchildren to refuse to pledge allegiance to the flag, and the right of government employees to refuse to take an oath disavowing particular beliefs and associations.
(4) The right not to be associated with particular ideas.
The guarantee of freedom of speech means that a person is entitled to speak his or her own ideas and cannot forced to be associated with a particular idea with which that person disagrees. The right not to be associated with particular ideas arises in two situations. First, since money is considered speech for First Amendment purposes, the government cannot compel a person to pay money to support the expression of an idea with which that person disagrees. For example, when governmental employees are represented by a union under an agency shop arrangement fee, the union may not use any portion of the agency fee to advance ideological purposes unrelated to the union's function as collective bargaining representative.
Second, there is the right not to be compelled to share one's own speech with opposing speech and to in effect provide a forum for that opposing speech. For example, the Court has held as unconstitutional a state right of reply law, which required a newspaper to give a right of reply in the newspaper to a political candidate that it had attacked in print. The effect of the law would be to force the newspaper to provide a forum for the political candidate to reply to the newspaper's attack on the candidate.
(5) The right to avoid unwanted communications.
The First Amendment right of silence includes the right not to listen to speech that a person wishes to avoid. This aspect of the right of silence enables a person to refuse to receive political, religious, or commercial solicitors calling on the person at home. The person can tell them to leave or post a no-solicitation sign, and if they insist on trying to communicate with the person after they have been told to leave, they can be prosecuted for trespass.
Similarly, the government can protect the right to avoid unwanted communications by establishing a system by which persons can in advance indicate their unwillingness to receive certain kinds of communications and prohibit senders from sending such communications, such as by a do not call list.
Suggested Citation: Suggested Citation
Sedler, Robert A., The First Amendment Right to Silence (November 9, 2007). Wayne State University Law School Research Paper No. 07-39. Available at SSRN: https://ssrn.com/abstract=1031505 or http://dx.doi.org/10.2139/ssrn.1031505