October 13, 2020
When Vaclav Havel became the first post-communist president of Czechoslovakia in 1989, he replaced the regime that had imprisoned him for dissent on multiple occasions. In 1978, Havel published the essay “Power of the Powerless,” in which he described a grocer whose submission to the totalitarian government was exemplified by posting a sign in his shop window reading “Workers of the World, Unite!” It was not, Havel explained, out of conviction, but out of submission to the ruling Communist Party.
In the United States, we are, for the most part, confident that we would not have to endorse or display a government slogan if we did not want to. This fact is due, in no small part, to the efforts of people of faith to secure their religious freedom. Their decisions widened the circumference of freedom for everyone.
The religious roots of free speech doctrine
The first U.S. Supreme Court decision to deal with the specific question of free speech or whether the government can require citizens to endorse a message was decided in a 1943 case. West Virginia State Board of Education v. Barnette was initiated by a religiously motivated refusal to salute the flag and say the Pledge of Allegiance. Marie (age 8) and Gathie Barnett (age 10) had been expelled for their refusal based on their Jehovah’s Witness faith. The Court explained in a powerful passage:
If there is any fixed star in our constitutional constellation, it is that no 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.
Then in 1976, George Maynard, also a Jehovah’s Witness, objected to the motto on the New Hampshire license plate, “Live Free or Die.” He explained: “It would be contrary to that belief to give up my life for the state, even if it meant living in bondage. Although I obey all laws of the State not in conflict with my conscience, this slogan is directly at odds with my deeply held religious convictions.” So, he cut the words “or die” from his plate and was sentenced to six months in jail.
In Wooley v. Maynard, the Supreme Court said:
Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life — indeed, constantly while his automobile is in public view — to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.
The court struck down the license plate requirement, concluding:
The First Amendment protects the right of individuals to hold a point of view different from the majority, and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.
The religious motivations in the Barnette and Wooley cases were not just incidental facts to the creation of new free speech protections but rather were their primary drivers. In other words, these individuals’ pursuit of their religious freedom resulted in protection for everyone – religious or not – from being forced to endorse messages and ideas that the government or society favors but that you disagree with.
‘Compelled speech’ cases proliferate
The precedent established in these cases has been applied to a range of other cases.
In 1972, Pat Tornillo ran for the state legislature in Florida. Upset at his role in leading teacher strikes, the Miami Herald ran two editorials criticizing Tornillo, who then demanded to have the paper publish his rebuttal verbatim.
Florida law was actually on his side. The relevant statute provided that:
if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges.
Failure to do so was a misdemeanor.
The Miami Herald refused and the case went to the Supreme Court, which struck down the Florida statute in Miami Herald Publishing Company v. Tornillo. The court said: “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official — whether fair or unfair — constitute the exercise of editorial control and judgment.” The First Amendment did not allow a state to interfere with this control and judgment.
Building on this ruling, in 1986 the court invalidated a California agency’s ruling that a utility had to publish statements from an opponent of the utility’s views.
In National Institute of Family and Life Advocates v. Becerra, in 2018, the court struck down a California law that, among other things, required licensed pregnancy clinics to “notify women that California provides free or low-cost services, including abortions, and give them a phone number to call” and unlicensed clinics to display a conspicuous notice that they are not a medical facility. The court opinion said both violated the First Amendment. The requirement that licensed clinics share a “government-drafted script” essentially required the pro-life clinics “to inform women how they can obtain state-subsidized abortions—at the same time [the clinics] try to dissuade women from choosing that option” which compelled them “to speak a particular message.”
In another case that same year, Janus v. American Federation of State, County, and Municipal Employees, the court held that Illinois could not force public employees to pay dues to a union. The court said the statute violated the first Amendment because it “compels [employees] to voice ideas with which they disagree.” In Janus, the court referenced Barnette as a “landmark free speech case” which had established the principle “that a law commanding ‘involuntary affirmation’ of objected-to beliefs would” be even more troubling “than a law demanding silence.”
The decisions to protect the convictions of people of faith have clearly resulted in important precedents that protect a wide range of other interests and personal freedoms. This illustrates a fundamental phenomenon: Protecting religious freedom results in protecting other individual rights essential to all Americans.
“The U.S. has a vibrant and thriving biopharma sector” – says American Enterprise Institute scholar and Milton Friedman chair James C. Capretta – “in large part because the payments system for these products is more favorable to the industry than it is elsewhere.”
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Americans get what they pay for when it comes to prescription drugs. We pay higher prices for drugs but gain access to nearly twice as many new medicines as citizens in foreign countries that use the law or government programs to set drug prices.
With another U.S. Supreme Court term beginning, there are more opportunities for guidance and protection of religious freedom. To understand these opportunities, we asked Howard Slugh some questions about religious freedom cases in the upcoming court term.