Does the First Amendment Make the Lincoln Memorial -Reply

[richard duncan]

Jack Balkin writes:
> Let us accept that under the First Amendment, government may attempt
> to persuade its citizens, but it may not brainwash them or commandeer
> them.   Under what conditions does the government brainwash or
> commandeer, other than merely wheedle or cajole?  Does Rick's principle
> mean that requiring pregnant women to listen to speeches (or read
> literature) about what happens to the fetus in an abortion and about the
> availability of adoption alternatives before they can get an abortion is
> unconstitutional under the First Amendment (as opposed to the Due
> Process Clause)?  Others might well agree with such a result because
> they oppose restrictions on abortion as a matter of Due Process; but I am
> interested in Rick's views precisely because he is not in this camp.
>
_______________________

This is a good and a fair question.

Everything concerning abortion goes back to Roe. The alchemy of Roe
converted a violent criminal act into a fundamental constitutional
right. That distorts everything. But, like it or not, Roe is law at
least for this generation. And informed consent laws that require
women to listen to "speeches" before abortions raise some of the same
kind of "commandeered audience" problems that I have identified with
respect to public schools. But these speeches tend to be brief and
there is no requirement that the woman actually listen to the speech
or be examined for mastery of the facts. Public education, on the
other hand, must be submitted to for many hours each week for 12
years. To the extent that the concern is with freedom of belief
formation, informed consent laws impose only a trivial burden when
compared to public education.

>       Only when religion is involved-- as in the school prayer cases-- does
> the Constitution suggest that exposure to unwanted ideas is more
> troublesome for children than for adults.  The reason for this distinction
> and this assymetry is that the Establishment Clause is a specific
> constitutional limitation on government speech, whereas the Free Speech
> Clause (in general) is not.  Not all speech is religious speech, and so
> arguments that apply inside the jurisprudence of the religion clauses
> cannot always be transferred root and branch to arguments about the
> Free Speech Clause.
>____________________

But if Jack agrees that the First Amendment prohibits government from
using coercion to commandeer audiences for its message--free speech
includes the right not to speak; the right to receive speech includes
the right not to be forced to receive unwanted messages (including the
government's messages); freedom of thought and belief formation
includes the right not to be subject to coercion by the government for
the purpose of inculcation--then the issue is not transferring EC
values into the Speech Clause. The issue is what is coercion, and here
we have a body of law defining coercion and specifically indicating
a particular concern about governmental pressure being applied to
impressionable children. Does "coercion" mean one thing under one
clause of the First Amendment and something different under another
clause of that Amendment?

Jack also said that my arguments suggest that Barnette was
wrongly decided because it did not go far enough. Well, I certainly
agree that Barnette did not take the logic of its reasoning as far as
it should have. But consider this dicta from Barnette:

"As governmental pressure toward unity becomes greater, so strife
becomes more bitter as to whose unity it shall be. Probably no deeper
division of our people could proceed from any provocation than from
finding it necessary to choose what doctrine and whose program public
education officials shall compel youth to unite in embracing. Ultimate
futility of such attempts to compel coherence is the lesson of every
such effort from the Roman drive to stamp out Christianity as a
disturber of its pagan unity, the Inquisition, as a means to religious
and dynastic unity, the Siberian exiles as a means to Russian unity,
down to the last failing efforts of our present totalitarian enemies.
Those who begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opinion achieves
only the unanimity of the graveyard."

319 U.S. at 641. I agree with Justice Jackson's eloquent statement of
the problem of compelled unity of thought and belief. I think it
implies a solution.

                    ----------
             Rick Duncan (rduncan at unlinfo.unl.edu)

"There's no pleasure on earth that's worth sacrificing for the sake of
an extra five years in the geriatric ward of the Sunset Old People's
Home, Weston-Super-Mare." Horace Rumpole