Speech compulsions and duties to notify
Volokh, Eugene
VOLOKH at law.ucla.edu
Sat Nov 5 14:14:28 PST 2005
The spousal communications privilege doesn't seem quite on point
here; it's a creature of state law, and not, I think, constitutionally
mandated. Likewise I don't see any procedural due process problem with
compelled revelations of accurate information.
The compelled speech question, on the other hand, is quite
doctrinally nontrivial. The Court has asserted that speech compulsions
are as invalid as speech restrictions, and it has applied this to
compelled revelation of facts as well as of ideas (see Riley v. National
Federation for the Blind). Yet can that really be right? Are various
duties to warn (e.g., to warn that one has a sexually transmitted
disease) presumptively unconstitutional? Duties to report crime?
Duties to respond to the Census? Duties to testify, at least unless
there's a compelling government interest involved?
Eugene
> -----Original Message-----
> From: J. Noble [mailto:jfnbl at earthlink.com]
> Sent: Saturday, November 05, 2005 1:28 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Telling husband and Alito
>
>
> You're elevating the Bd. of Regents' "nature of the interest at
> stake" well beyond "a person's good name, reputation, honor, or
> integrity." The legislative findings aren't going to satisfy
> procedural due process requirements for compelled disclosure of a
> marital communication or confession of adultery.
>
> Yvette mentions the state's ordinary lack of interest in marital
> communications. The state's interest might even be pressing. If her
> husband is on trial in federal court for murdering her boyfriend,
> both husband and wife would be heard on the marital communications
> privilege before she had to testify that on the night her lover was
> killed, she told her husband she was pregnant and wanted an abortion.
> Or she would be heard on the adverse spousal testimony privilege
> before she had to testify that she was pregnant and her husband
> wasn't the father. Congress can amend the Rules of Evidence, but they
> indicate what process is due.
>
> The history and tradition of the privileges provide a better
> foundation for an SDP claim than abortion. It's closer to Griswold
> than Roe. Even if contraception is sinful, I would expect the
> strongest advocates of the special quality and primacy of marriage
> (as may be defined) and family (as may be required) to have a problem
> with this certification requirement. There must be a lot of less
> private marital communications that the government can require
> spouses to disclose on the record under penalty of perjury for more
> useful purposes, because I can't think of any more private
> communications that the government could more uselessly require.
>
> And why isn't this compelled speech?
>
> John Noble
>
> At 11:08 PM -0800 11/4/05, Volokh, Eugene wrote:
> > It is true that the state rarely orders spouses to
> reveal things to
> >each other about their medical procedures. But then again spouses
> >rarely do things that the other spouse may well perceive as
> killing his
> >children. Even those of us who are pro-choice may find the
> prospect of
> >a fetus that we helped conceive being aborted to be quite different
> >from steps taken to prevent the conception altogether. It
> seems to me
> >quite reasonable for the state to treat the two quite differently.
> >
> > This doesn't, of course, dispose of whether the restriction --
> >reasonable as it might be -- is nonetheless
> unconstitutional, perhaps
> >because it's an undue burden on the right to an abortion. But, as
> >Frank Cross suggested, it seems to me that the matter is far less
> >simple than some in the pro-choice camp would suggest. The
> >husband-father's interests are substantial, perhaps not substantial
> >enough to give him a veto (given the greater magnitude of the
> >wife-mother's interests), but perhaps substantial enough to
> entitle him
> >to at least some notification, at least absent special circumstances
> >such as the ones that led to the exceptions in the
> Pennsylvania law.
> >I'm not sure I'd vote for such notification, or even
> conclude that such
> >a notification requirement was constitutional under the
> pre-Casey undue
> >burden test; I just think the question is quite close, and
> analogies to
> >behaviors that are quite different aren't that helpful..
> >
> > Eugene
> >
> >> -----Original Message-----
> >> From: Barksdale, Yvette [mailto:7barksda at jmls.edu]
> >> Sent: Friday, November 04, 2005 10:09 PM
> >> To: J. Noble; Don Crowley; Volokh, Eugene;
> conlawprof at lists.ucla.edu
> >> Subject: RE: Telling husband and Alito
> >>
> >>
> >> Isn't thinking of this case as a simple matter of the state
> >> protecting the father's interest in knowing the status of
> the unborn
> >> child oversimplifying the analysis here? Isn't the state really
> >> intruding into areas into which it ordinarily doesn't go,
> outside of
> >> the context of abortion. For example, in your view, could
> the state
> >> similarly require the wife to tell her husband that she is using
> >> birth control? Or to inform her husband of health care
> issues that
> >> could affect her fertility? Or to require the husband to tell the
> >> wife of health care issues that could affect his
> fertility - such as
> > > whether he has a vasectomy - or takes certain medications,
> >> etc.? Or to that could affect how long he or she lives -
> >> which certainly is of the interest to the spouse?
> >>
> >> Generally, although these matters are certainly of
> interest to the
> >> spouse - they are inevertheless still considered private
> matters for
> >> the individual spouse. And whether the individual spouse
> tells the
> >> other spouse is also a private matter for the married couple, not
> >> for the state. Ordinarily
> >> - the state is not considered to have any interest in intruding
> >> into these private marital communications (except in cases of
> >> domestic violence and abuse), This is so even when the
> >> communications don't involve the individual spouses
> exercise of her
> >> constitutional right. Wouldn't the state have even less of an
> >> interest when the individual's constitutional right is at stake?
> > >
> >> So, why is this abortion notification issue any different
> >> these other private matters between spouses - except that a
> >> disclosure rule would make it more difficult for women to
> >> have abortions. Certainly, one can take the position that the
> >> state's interest in preventing abortions is always a
> >> compelling one - and thus any way of achieving that is a
> >> compelling state interest - but that just brings us full
> >> circle to the Roe/not Roe debate - that is the view that the
> >> state has a compelling interest in preventing abortions that
> >> overrides what otherwise would be maternal reproductive
> >> rights. But that doesn't mean the state has an additional
> >> state interest in policing intermarital communications - just
> >> because the topic is abortion - which the state happens to
> >> want to disfavor.
> >>
> >> Moreover, didn't O'Connor's opinion in Planned Parenethood
> >> characterize the undue burden test as essentially a
> factual analysis
> >> of whether the regulation would or would not prevent some
> critical
> >> mass of women from having abortions. And is there any doubt that
> >> certainly some significant number of women would face (or fear)
> >> sufficiently adverse consequences from spousal notification that
> >> they would not have the abortion? Okay, outlawing such
> abortions may
> >> be a wonderful goal. But the question of whether the state can
> >> constitutionally do so is still Roe/not Roe redux,
> >>
> >>
> >> yb
> >>
> >>
> >> ________________________________
> >>
> >> From: conlawprof-bounces at lists.ucla.edu on behalf of J. Noble
> >> Sent: Fri 11/4/2005 10:13 PM
> >> To: Don Crowley; 'Volokh, Eugene'; conlawprof at lists.ucla.edu
> >> Subject: RE: Telling husband and Alito
> >>
> >>
> >>
> >> It seems easier to start fresh, without the baggage of
> Roe and its
> >> progeny. I have more difficulty defending the SDP right to an
> >> abortion, or characterizing spousal notification as an
> undue burden,
> >> than I have making the argument that my client cannot be
> compelled
> >> to reveal anything in particular to anyone in particular
> unless you
> >> brought a subpoena.
> >>
> >> John Noble
> >>
> >> At 1:50 PM -0800 11/4/05, Don Crowley wrote:
> >> >Eugene's suggestion that he doesn't know if "women have a
> >> >constitutional right to conceal evidence of their
> infidelity from
> >> their >husband," seems like an odd analogy. Women do have a
> >> constitutional >right not to be forced by the state to reveal an
> >> abortion to their >husbands unless they choose to do so.
> It is very
> >> hard to see what the
> >> >state interest is here. Stable marriages? Sure women should
> >> tell their
> >> >spouse but that normative claim is a long way from
> saying that the
> >> >state has a legitimate interest in forcing them to do
> so. I'm not a
> >> >great fan of O'Connor undue burden approach but it is hard
> >> to see what
> >> >the goal of the state here is if it isn't to place a
> burden on the
> >> >ability to exercise an abortion.
> >> >
> >> >Don
> >> >
> >> >-----Original Message-----
> >> >From: conlawprof-bounces at lists.ucla.edu
> >> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> >> Volokh, Eugene
> >> >Sent: Friday, November 04, 2005 11:55 AM
> >> >To: conlawprof at lists.ucla.edu
> >> >Subject: RE: Telling husband and Alito
> >> >
> >> > (1) If it's the milkman's child, then wouldn't the
> >> woman have
> >> >been *exempted* from Pennsylvania's spousal notification law?
> > > >
> >> > (2) I very much sympathize with women who fear that
> >> telling the
> >> >husband about an abortion will lead to violence against them
> >> -- which
> >> >is why, as I understand it, the Pennsylvania law exempted them,
> >> too.
> > > >But do women have a constitutional right to conceal evidence
> >> of their
> > > >infidelity from their husband, when the risk (as Calvin
> >> hypothesizes)
> >> >is that the husband would demand a divorce? That seems
> like a much
> >> >less sympathetic scenario (though, as I mentioned, not one
> >> implicated >by the Pennsylvania law, which I believe
> exempted this
> >> situation). >
> >> > Eugene
> >> >
> >> >> -----Original Message-----
> >> >> From: conlawprof-bounces at lists.ucla.edu
> >> >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin
> > > >> Johnson
> >> >> Sent: Friday, November 04, 2005 11:46 AM
> >> >> To: Jonathan Miller; CONLAWPROF at lists.ucla.edu
> >> >> Subject: Telling husband and Alito
> >> >>
> >> >>
> >> >> A Wife who does not tell her husband that she is
> having an
> >> >> abortion is indeed taking an important step. She would do
> >> that only
> >> >> for very very good reasons. Maybe the child is the
> >> milkman's child,
> >> >> and H could figure that out, and yet she would like to
> >> stay within
> >> >> the marriage relatioinship and raise H And W's 5 kids
> >> together with
> >> >> H.
> >> >> Telling H would end it. In Godfather, Kay ultimately told
> >> >> Michael she
> >> >> had had an abortion (not a miscarriage) because she
> could not
> >> >> stand the thought of having his child. She was very very
> >> lucky to
> >> >> get out of that announcement alive.
> >> >>
> >> >>
> >> >> Calvin H. Johnson
> >> >> Andrews & Kurth Centennial Professor of Law
> >> >> The University of Texas School of Law
> >> >> 727 E. Dean Keeton (26th) St.
> >> >> Austin, TX 78705
> >> >> (512) 232-1306 (voice)
> >> >> FAX: (512) 232-2399
> >> >> Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
> >> >> For reviews, chapters, discounts and news on Johnson,
> Righteous
> >> >> Anger at the Wicked States: The Meaning of the Founders
> >> Constitution
> >> >> (Cambridge University Press 2005) see
> >> >> http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
> >> >>
> >> >> -
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> >_______________________________________________
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