The First Amendment right to remain silent

“I respectfully decline to answer on the grounds that it might tend to incriminate me.” All of us are familiar with the Fifth Amendment’s privilege against self-incrimination, that no one is Constitutionally required to make a public confession of being guilty of a crime. The rack and the screw to force confessions have no place in our Constitutional democracy. 

People may be less familiar with the broader First Amendment right to remain silent, a freedom not to speak, as a necessary corollary of freedom of speech. Together with the First Amendment’s freedom of religion, freedom from compelled speech carves out in our Bill of Rights wide scope for freedom of personal conscience. 

I was reminded of this by a series of significant anniversaries and current Supreme Court decisions. One was the 75th anniversary of the seminal flag salute case, West Virginia State Board of Education v. Barnette, decided on Flag Day in 1943, in the middle of the Second World War. Jehovah’s Witness schoolchildren had been expelled from public school for refusal to salute the flag, which their religion considered a forbidden form of idolatry. The U.S. Supreme Court reversed their punishment, on grounds that “If there is any fixed star in our Constitutional constellation, it is that no (government) official, high or petty, can prescribe 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.” 

Another is our annual Fortnight of Freedom to celebrate religious freedom. It begins on the anniversary of the feast of St. Thomas More, the renowned lawyer and statesman who gave his life rather than swear to something he believed to be false; and ends on the Fourth of July, the annual anniversary of our country’s freedom from English rule and dedication to the proposition that all of us are created free and equal.

This year and next the famous paintings by Norman Rockwell, the Four Freedoms, are leaving their usual dwelling in Stockbridge, Mass., and touring the country. These four paintings were done around the time of the Barnette decision as visual icons of President Franklin Roosevelt’s Four Freedoms: Freedom of Speech, Freedom to Worship, Freedom from Want, and Freedom from Fear, what we were fighting World War II to achieve. Freedom of Speech portrays a man freely expressing his contrarian views at a New England town meeting, while his fellow citizens listen respectfully. Obviously, our polarized country could use more of this respectful dialogue.

But it is worthy of note that a couple of recent Supreme Court decisions, both decided five-to-four in the last week of June, with Justice Anthony Kennedy the swing vote, turned on freedom from speech compelled by government, what I have called the First Amendment right to remain silent. One was the NIFLA case out of California, which had tried to force Pro-Life crisis pregnancy centers to advertise for abortion. No way, said the majority opinion by Justice Clarence Thomas. These Pro-Life centers did not have to violate their deeply held beliefs by promoting abortion. Full disclosure: I filed, along with Professor Mary Ann Glendon, an amicus brief in support of NIFLA that supported the result and that was written by Harvard Law students ably coordinated by Grant Newman. 

The other case challenged the agency fees charged to public employees by unions on grounds that these funds were being used for purposes that the non-union employees disagreed with. Once again, the Court ruled five-to-four that the First Amendment protected dissenting employees from having to contribute to causes they don’t believe in.  I myself belong to a public employees union, but I agree with this decision.

The retirement of Justice Anthony Kennedy from the Supreme Court makes it imperative that his successor on the court, whoever it is, continue to make wide room for the First Amendment right to remain silent. Because we know that there are four on the court who don’t and won’t. Respecting conscience has always been the American way at its best. This is not “weaponizing the First Amendment.” It is respecting what conscience requires. 

Anchor columnist Dwight Duncan is a professor at UMass School of Law Dartmouth. He holds degrees in civil and canon law.

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