State Compelled Expression: Two recent cases

Posted June 27, 2018
By Richard Moon

Claims that the state has improperly or unjustifiably compelled individuals to speak, contrary to s. 2(b) of the Charter (freedom of expression), have recently been made in two cases. In one case, several religious organizations have objected to a requirement that applicants to the Federal Government’s student summer jobs grant program “attest that both the job and the organization’s core mandate respect individual human rights in Canada, including … reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”  In the other case, a number of lawyers in Ontario have objected to the requirement recently introduced by the Law Society of Ontario (the regulatory body for lawyers in the province) that they “create and abide by an individual Statement of Principles that acknowledges [their] obligation to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public”.

There are a variety of situations in which an individual may be required to make a particular statement or utter particular words as a condition of receiving a benefit or privilege. An employer can require an employee, as an agent of the business, to make certain statements as part of his or her job, statements such as “Would you like fries with that?” An employer, though, cannot require its employees to make statements on moral or political matters that fall outside the scope of the company’s ordinary business – for example, to require employees to tell customers that they support the Liberal Party or that they are opposed to abortion. The state may similarly require civil servants to say certain things as part of their work duties. The state, though, may also require an individual to provide certain assurances before receiving a particular benefit. Notably, the state may require an individual who wishes to become a citizen to take an oath of allegiance. In a case that came before the Ontario courts a few years ago, a number of individuals sought to be exempted from all or part of the citizenship oath on the grounds that as anti-monarchists they could not in good conscience swear allegiance to the Queen. The courts though rejected this claim noting that “the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy." According to the courts, the individuals who objected to the oath were mistaken about the meaning or scope of the oath – which required simply that they swear allegiance to the Canadian democratic system.

In the two recent cases described above, the key issue is not whether individuals or groups have been compelled by the state to make particular statements but is instead whether the state can attach certain conditions to the grant of a benefit or privilege. The individual or group in these cases is “compelled” to attest or affirm (to the granting body or to the law society) that they meet (or will meet) the conditions of the grant or privilege. The compelled speech is objectionable only if the state has acted improperly in attaching these conditions. In both cases, there is disagreement about the breadth of the conditions and whether the state is justified in imposing them.

The Right to Speak and Not to Speak

Not only is it wrong for the state to prevent an individual from communicating with others, it is also wrong for the state to compel an individual to communicate against his or her will. The Supreme Court of Canada has said that freedom of expression “guarantees[s] to every person the right to express the opinions he may have: afortiori they must prohibit compelling anyone to utter opinions that are not his own”. In this description, the right not to express oneself ('not to speak') is simply the other side of the freedom of expression coin. Whether an individual chooses to speak or not to speak, his/her choice is deserving of respect and protection. 

Does it follow, though, that freedom of expression must encompass both a right to speak and a right not to speak? The Charter of Rights does not protect every choice or liberty. Rather, it protects the choice or liberty to engage in activities that are thought to be fundamentally important to the individual and community, activities such as expression or religious worship. Leaving aside those occasions when silence is itself expressive (the most obvious example being a moment of silence), it is not at all clear that silence (non-speech) is as valuable as expression. The right not to speak is constitutionally protected because the activity of expression is vitally important to the individual's identity and place in the community and not because silence is as valuable to the individual as expression. The articulation of her thoughts and feelings is so important to the individual that it is a serious affront to have to speak words, to express views, that are not her own. 

Invasion of the Individual's Sphere of Intellect and Spirit

In the United States the right against compelled speech first appeared in the U.S. Supreme Court judgment of West Virginia v. Barnette (1943). The case involved the suspension from school of children who, for religious reasons, refused to salute the flag as required by a school board resolution.4 The U.S. Supreme Court held that the resolution was contrary to the First Amendment. In the court's opinion, the flag salute was an expression of loyalty that individuals should not be compelled to make. Mr Justice Jackson (who later served as a prosecutor in the Nuremberg trials) declared: 

If there is a 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 ... We think the action of the local authorities in compelling the flag salute and pledge transcends   constitutional limitations on their power and invades the sphere of intellect and spirit    which it is the purpose of the First Amendment to our Constitution to reserve from all official control. (Barnette 1943)

Here was a clear attempt by the state to impose ideological conformity, which could not be rationalized as a reconciliation of competing rights. The 'invasion' seemed significant in this case because of the very personal character of an expression of national pride and loyalty. The invasion was greater perhaps because the children had chosen not to salute the flag for religious reasons. The school board may have hoped that the daily collective flag salute would somehow generate greater national pride among the students and even alter the views of the dissenting children. More likely though, the board simply thought that if an American child did not voluntarily show appropriate respect for the flag, he/she should be forced to do so. If the children in this case had given way and agreed to participate in the flag salute, the teachers and students witnessing the salute would have known that it was not done voluntarily. The school board's resolution was objectionable not because people might think that the flag salute by these students was a voluntary act reflecting sincere belief but because it required an individual to present herself publicly in a way that was not true to his or her personal beliefs. The wrong was the indignity of having to affirm publicly views that were not his or her own.

Generally, when an individual is compelled to express herself, the audience is aware that the message has been compelled and is not the individual's own. Thus, in most cases, the problem with compelled expression is not that the audience might believe the views expressed to be genuine, or even that the audience cannot be certain whether an individual's speech represents his/her actual view. Compelled expression is wrong because an individual's communication (what she says or writes) is closely linked to her sense of self and to her place in the community. Our ideas, feelings and, more broadly, our identity, take shape in public expression, when we give them symbolic form and make them accessible to others, who respond or react to them in different ways. Because the public articulation of ideas and feelings is so critical to the individual's identity, any interference with his or her expression, whether in the form of censorship or compulsion, is experienced as an invasion of the self. Compelled expression is invasive even though, in many or most cases, the audience is aware that the views expressed are not the actual views of the speaker, or, at least, are not views the speaker has herself chosen to express. 

Agreeing to Respect Diversity and Rights

There should be no objection to the Law Society of Ontario requiring lawyers to respect equality rights in their practice or even to work to improve diversity in the profession. And if that is unobjectionable, then it should also be unobjectionable for the law society to require lawyers to confirm their intention to carry out these responsibilities. The issue though in this case is whether the duty (and the affirmation or undertaking) imposed on lawyers by the law society involves more than simply advancing (and undertaking to advance) equity in the profession. Critics point out that the law society’s policy requires lawyers “to promote equality … generally” [emphasis added] and not just in their professional lives. The focus on compelled expression distracts us from the real issues, which is whether the policy should be read as requiring lawyers to advance equality in all aspects of their private and public lives – and not just in their professional lives (and, if it does do that, whether this is beyond the scope of the law society’s authority to regulate the actions of its members).

Similarly, there should be no objection to the federal government attaching certain conditions to how grant money is spent, unless these conditions are discriminatory or exclude individuals or groups because of their political positions (when these positions are unrelated to the purpose of the grant program, such as refusing to give arts grants to socialists). If the government is able to attach conditions to its grants, then it can also require grant applicants to undertake that they will spend the grant money in a way that does not breach these conditions. The issue, then, in this case, is whether the limit imposed by the government on how the grant money is spent is discriminatory or unfairly denies resources to groups that are religious or that hold views with which the government disagrees. Once again, the talk about compelled speech distracts us from the real issue.

The generality of the language used by the state in each of these cases permits a broad reading of the requirement or condition that is unfair or unjust to some individuals and groups and/or outside the mandate of the state actor – a reading that would impose unreasonable or unfair limits on access to the particular benefits. Yet in both cases a narrower reading of the requirement or condition is possible. If the requirement in each case can be read so that it is not unreasonable and not outside the legal authority of the state actor, then that is the reading that should be adopted – and that will almost certainly be adopted by the courts. The complainants in both cases seem determined to find fault with the state actor, and to see themselves as oppressed or unfairly treated.

The state is entitled to attach certain requirements or conditions to the grant of money or other benefits. It is also allowed to ask grant applicants to confirm they meet or will meet these requirements. Compelled expression then is at best a marginal or secondary issue in these cases.  I suspect that when the complainants in these cases raise concerns about compelled speech they are searching for a legally cognizable form in which to express their general objection to the state’s policy in these areas. Behind the complaint in job grants case is a deeper opposition to public policy concerning reproductive rights. Some conservative religious organizations are refusing to make the required attestation about their mandate, even when that mandate says nothing about abortion or other reproductive issues. Some of the lawyers who have objected to the law society’s “statement of principles” requirement appear to have broader concerns about the law society’s policy of taking affirmative action to increase diversity in the profession. Others, seem to object on libertarian grounds to a requirement that they support or indicate support for the diversity policy. In both cases though, the objection to compelled speech, is standing in for other concerns that on their own will not support a constitutional challenge.