Compelled speech has become quite the thing lately. It’s all tied up with constitutional first amendment issues and is at the heart of many a modern imbroglio. In just Colorado, there’s the infamous cake shop and web design cases that have been through the justice system. The very day that Masterpiece Cakeshop v. Colorado Civil Rights Commission was decided in favor of the baker, a local lawyer created additional legal hot water when a request for a transition-celebration cake was rebuffed. The first Supreme Court decision was narrowly tailored and did not resolve underlying free speech concerns. Maybe next time.
Other cases, just off the top of my head, include the Little Sisters of the Poor (the feds continue to litigate whether the nuns must provide contraception and abortion coverage with their healthcare) and the prayerfully kneeling football coach up in Washington state. You probably could amass your own list as well.
***
The amendment is pretty straightforward:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So, congress shall make no law… abridging the freedom of speech. There is, though, the compelled speech doctrine that holds that the government cannot force people to say things or perform acts that violate their conscience. In 1942, the court ruled that children who were Jehovah’s Witnesses could not be compelled to say the Pledge of Allegiance or salute the flag. In a 1977 decision, Chief Justice Warren Burger stated, “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’ ”[1] (Emphasis added.)
***
But, remember, the first amendment merely enjoins governments and those who work for them. A private company, or your neighbor, or Twitter for that matter, can infringe on an individual’s freedom of speech all they want. Target can choose not to provide retail services to someone wearing a Confederate stars-and-bars t-shirt while, at the same time, your neighbor can paint the stars-and-bars on his driveway. Twitter could require all users to adopt new pronouns for their profile – ze/zir/zem acceptable, he/him/they not.
_-_I_saggi_Mondadori_1974.jpg){kind=link}
I’m holding this freedom-of-speech colloquy with myself because, mostly, people just don’t want to hear about it. Or, just maybe, they don’t want to fight for it.
Fight for it?
Yep.
Compelled speech is everywhere these days, in all the myriad minefields strewn about our daily lives. Awakened to what passed for education during COVID shutdowns and remote learning, parents descended upon school board meetings to vent their frustrations only to be labelled domestic terrorists when a national school board association coordinated with the Biden administration’s Justice Department.
Congress made no law, true, but… the result still was government action that chilled the free speech rights of American citizens. Not to be overlooked is the notion that Congress, or governments in general, may not deputize others to infringe rights on their behalf.
And nowhere is compelled speech more prevalent than in any discussion of issues within what might be called the trans debate. There are real questions to be weighed but one side of the debate has decreed that any language that provides clarity is verboten.
We should start, as always, with the notion that all people, on all sides of the debate, should be treated respectfully. Individuals are worthy of our love and support. Demanding that someone who disagrees with an amorphous group’s political, cultural or social agenda should just shut up, be shunned, or be considered unworthy, is just middle school, Mean Girls stuff.
(Does it stay in middle school? A recent kerfuffle ensued when a college student’s research proposal received zero points because she used the words “biological female” – in a proposal to study the effects on biological females of trans women’s participation in competitive athletics.)
What are some of those real questions?
Given: women have demanded and received cultural recognition and, in some cases, amelioration of, injustices visited upon them, such as banks that wouldn’t let them start a bank account without their husband’s imprimatur, unequal treatment in the workplace, etc.
Given: federal and state governments acted to address disparities, in law. For example, the Small Business Administration has generous programs to incubate women-owned businesses, with additional help provided in securing federal government contracts. Another example: Title IX amended the Higher Education Act of 1965 (and other statutes) to prohibit exclusion, denial of benefits and discrimination in educational programs receiving federal financial assistance. The practical effect was to greatly expand support for women’s athletics in college and high school. (As a rough example, if there were 75 men’s varsity athletic scholarships, there needed to be 75 women’s varsity athletic scholarships. If there was a high school baseball team, there should be a high school softball team.)
Therefore: is it right and just for a biological man to claim status as a trans woman and, ex nihilo, be granted financial, educational and other benefits intended to ameliorate historical difficulties and injustices faced by women?
My mother lived within the cultural milieu that produced Betty Friedan and “The Feminine Mystique,” published the year I was born. If anyone could lay rightful claim to feminist arguments, it would be her, and not, I submit, a young trans woman in 2022 wanting to compete against biological females in college sports.
,_National_Museum_of_Health_and_Medicine_(3393261072).jpg){kind=link}
It feels as if I left compelled speech behind a while ago. So, I’ll finish there.
“A trans woman is a woman; a trans man is a man.” That is taken as a given and a shibboleth that brooks no counter utterance. Its truth or untruth is immaterial to its symbolic value as a signifier of modern virtue. Spoken, it confers legitimacy and social capital; avoided or countervailed, it casts one into Gehenna.
True story:
My second-wave-adjacent mother spent the ages of about five to nine in Japanese prison camps in the Philippines during World War II. In the mornings, when internees lined up to be accounted, there was an expectation they would bow toward their captors and, presumably, the Japanese flag, and say “Ohayo Gozaimasu.” That roughly translates as “Good Morning,” but in a polite and overtly formal way, the way you might speak to your boss, people senior to you, elderly people.
Grandpa would have none of that compelled speech that would force him to honor his captors, many of whom would have been younger than he was. Instead, he would bow and say, “Hebrews 13:8.”
A small act. A small rebellion against the compulsion of his captors. “Jesus Christ is the same yesterday, today, and forever.”
And what might that little bit of linguistic subterfuge signify?
An expression of faith and hope during a time of possibly lethal uncertainty for him and his family (wife plus three children). I’ve read that despair is a particularly grievous affront to God. By giving up on hope, you deny God’s ability and agency to help you in your time of need.
Maybe a marker, if you will. A daily line in the sand, declaring for himself and to himself that he was a man, distinct and different from those who imprisoned him.
And, finally, perhaps, a willful and quietly stern rebuke to those who dared believe they could change him, in any fundamental way, through manipulating his use of language.
***
Who are you, then, in our modern age?
The captor insisting your prisoners (or ideological opponents) capitulate, speaking shibboleths to curry favor?
Are you one who has capitulated? A collaborator, who, in gleeful mimicry, sings the tormentor’s tune?
Or, perhaps, a quiet sufferer, mumbling anthemic words in childish treble hoping to go unnoticed by the popular front or by your fellows in the oppositional trenches?
Or could you be the brave resister, relying on ancient wisdom to be your lodestar in troubled times?
[1] “Compelled Speech.” The First Amendment Encyclopedia, mtsu.edu/first-amendment/article/933/compelled-speech.
Consider a 3rd century Bishop Eustathius who attended the 325 a.d. Council of Nicaea. For denouncing Arianism, he was tortured, starved and finally exiled. It is said that he composed the Nicene Creed, applied it to sheep skin and announced.."this is what I believe." The creed and faith remain. We join the brave resisters. PB