98 Pages Posted: 17 Jan 2012
Date Written: January 16, 2012
The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities - religion, speech, the press, assembly, and association. The first amendment also protects an individual's freedom to refrain from expressive activity.
Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public school teacher may not wish to reveal all organizations to which that teacher has belonged for fear of community hostility or loss of employment; or a litigant may seek to prevent disclosure of trade secrets or other private information through the discovery process. As a group, these cases are rightfully viewed as "compelled disclosure" cases.
Second, individuals have an interest in not being forced to belong to any organization or to make any statements when they would rather be silent or express different views. Within this category fall the claims of schoolchildren compelled to recite the pledge of allegiance in violation of their own religious or political views, of school teachers compelled to sign an oath of loyalty to the Constitution as a condition of employment, and of nonunion employees forced to pay service fees to support union activities with which they disagree. As a group, the constitutional obligations asserted in these three situations can be described as claims based on a first amendment protection for "intellectual individualism."
This Article focuses on the second group of "protected silence" interests. It traces the history and development of such claims in the jurisprudence of the first amendment through decades of sporadic Supreme Court attention. The Article explores how this distinct branch of first amendment doctrine relates to core free speech concepts and whether it is, as some have argued, a separate species appealing to a different range of interests than traditional free speech claims, or, instead, a part of traditional first amendment doctrine appealing to those same values.
The Article then discusses the development of the protection against compelled expression in Supreme Court decisions in the 1970s and early 1980s. The aim of this inquiry is to determine whether later cases, taken together with earlier decisions, present a consistent and coherent doctrinal picture. To the extent that the later cases suggest the Court has taken a new turning - either consciously or inadvertently - the values motivating this doctrinal shift in focus are identified. The Article goes on to address cases from the 1983-1985 Supreme Court Terms to evaluate whether the Court has found a methodologically consistent and doctrinally sound analysis.
Finally, the Article concludes with a suggested judicial analysis for cases of this type. The proposed approach accommodates mainstream first amendment doctrine in analyzing claims of interference with the freedom from compelled expression or association.
Keywords: first amendment, protected silence, intellectual individualism, Constitutional Law
Suggested Citation: Suggested Citation
Harpaz, Leora, Justice Jackson's Flag Salute Legacy: The Supreme Court Struggles to Protect Intellectual Individualism (January 16, 2012). Texas Law Review, Vol. 64, p. 817, 1986. Available at SSRN: https://ssrn.com/abstract=1986164