Freedom of Belief
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.
The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.566 “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.”567 Speaking in the context of religious freedom, the Court said that, although the freedom to act on one’s beliefs could be limited, the freedom to believe what one will “is absolute.”568 But matters are not so simple.
Flag Salutes and Other Compelled Speech.—One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Gobitis,569 the Court had upheld the power of Pennsylvania to expel from its schools certain children—Jehovah’s Witnesses— who refused upon religious grounds to join in a ﬂag salute ceremony and recite the pledge of allegiance. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”570 But three years later, in West Virginia State Bd. of Educ. v. Barnette,571 a sixtothree majority of the Court overturned Gobitis.572 Justice Jackson, writing for the Court, chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted “a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the ﬂag] bespeaks.”573 The power of a state to follow a policy that “requires affirmation of a belief and an attitude of mind,” however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual “creates a clear and present danger that would justify an effort even to muffle expression.”574
The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard,575 which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto “Live Free or Die.”576 Acting on the complaint of a Jehovah’s Witness, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment.577 Nor was there a constitutional violation where compulsory fees were used to subsidize the speech of others.578
Other governmental efforts to compel speech have also been held by the Supreme Court to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,579 a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records,580 an Ohio statute that prohibited the distribution of anonymous campaign literature,581 and a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message—in this case support for gay rights—that the organizers did not wish to convey.582
The principle of Barnette, however, does not extend so far as to bar a government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.583 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.584
By contrast, the Supreme Court has found no First Amendment violation when government compels disclosures in commercial speech, or when it compels the labeling of foreign political propaganda. Regarding compelled disclosures in commercial speech, the Court held that an advertiser’s “constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right.”585 Regarding compelled labeling of foreign political propaganda, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign “political propaganda,” he must label such material with certain information, including his identity, the principal’s identity, and the fact that he has registered with the Department of Justice. The Court found that “Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.”586
Imposition of Consequences for Holding Certain Beliefs.— Despite the Cantwell dictum that freedom of belief is absolute,587 government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions.588 It is not clear what precise limitations the Court has placed on these practices.
In its disposition of one of the first cases concerning the federal loyalty-security program, the Court of Appeals for the District of Columbia asserted broadly that “so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations.”589 On appeal, this decision was affirmed by an equally divided Court, its being impossible to determine whether this issue was one treated by the Justices.590 Thereafter, the Court dealt with the loyalty-security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or “beliefs plus.” But the same issue was also before the Court in related fields. In American Communications Ass’n v. Douds,591 the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct that Congress could prevent.592 Dissenting, Justice Frankfurter thought the provision too vague,593 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief that had not manifested itself in any overt act,594 and Justice Black thought that government had no power to penalize beliefs in any way.595 Finally, in Konigsberg v. State Bar of California,596 a majority of the Court supported dictum in Justice Harlan’s opinion in which he justified some inquiry into beliefs, saying that “[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions.”
When the same issue returned to the Court years later, three fivetofour decisions left the principles involved unclear.597 Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar;598 four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the states were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs.599 The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith.600 Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.
566 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); American Communications Ass’n v. Douds, 339 U.S. 382, 408 (1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357 U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5–6 (1971), and id. at 9–10 (Justice Stewart concurring).
567 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
568 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
569 310 U.S. 586 (1940).
570 310 U.S. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of “these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” Id. at 601.
571 319 U.S. 624 (1943).
572 Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court “to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.” 319 U.S. at 646, 647. Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at 642.
573 319 U.S. at 631, 633.
574 319 U.S. at 633, 634.
575 430 U.S. 705 (1977).
576 The state had prosecuted vehicle owners who covered the motto on their vehicle’s license plate.
577 As to the question of whether one can be required to allow others to speak on his property, compare the Court’s opinion in PruneYard Shopping Center v. Robins, 447 U.S. 74, 85–88 (1980) (upholding a state requirement that privately owned shopping centers permit others to engage in speech or petitioning on their property) with Justice Powell’s concurring opinion in the same case, id. at 96 (would limit the holding to situations where a property owner did not feel compelled to disassociate themselves from the permitted speech).
578 The First Amendment does not preclude a public university from charging its students an activity fee that is used to support student organizations that engage in extracurricular speech, provided that the money is allocated to those groups by use of viewpoint-neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 529 U.S. 217 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds). Nor does the First Amendment preclude the government from “compel[ling] financial contributions that are used to fund advertising,” provided that such contributions do not finance “political or ideological” views. Glickman v. Wile-man Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). But, for compelled financial contributions to be constitutional, the advertising they fund must be, as in Glickman, “ancillary to a more comprehensive program restricting marketing autonomy” and not “the principal object of the regulatory scheme.” United States v. United Foods, Inc., 533 U.S. 405, 411, 412 (2001) (striking down Secretary of Agriculture’s mandatory assessments, used for advertising, upon handlers of fresh mushrooms). The First Amendment is, however, not violated when the government compels financial contributions to fund government speech, even if the contributions are raised through a targeted assessment rather than through general taxes. Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005).
579 Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who has retained 85 percent of gross receipts from donors, but falsely represented that “a significant amount of each dollar donated would be paid over to” a charitable organization, could be sued for fraud.
580 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986), a Court plurality held that a state could not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees.
581 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
582 Hurley v. Irish-American Gay Group, 514 U.S. 334 (1995).
583 Cole v. Richardson, 405 U.S. 676 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-judge court), aff’d, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff’d, 390 U.S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court), aff’d, 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff’d per curiam, 414 U.S. 1148 (1974).
584 Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
585 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985). See Milavetz, Gallop, & Milavetz v. United States, 559 U.S. ___, No. 08–1119 (2010), slip op. at 19–23 (requiring advertisement for certain “debt relief” businesses to disclose that the services offered include bankruptcy assistance).
586 Meese v. Keene, 481 U.S. 465, 480 (1987).
587 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
588 The issue has also arisen in the context of criminal sentencing. Evidence that racial hatred was a motivation for a crime may be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983); Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal sentence may be enhanced because the defendant intentionally selected his victim on account of the victim’s race), but evidence of the defendant’s membership in a racist group is inadmissible where race was not a factor and no connection had been established between the defendant’s crime and the group’s objectives. Dawson v. Delaware, 503 U.S. 159 (1992). See also United States v. Abel, 469 U.S. 45 (1984) (defense witness could be impeached by evidence that both witness and defendant belonged to group whose members were sworn to lie on each other’s behalf).
589 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950). The premise of the decision was that government employment is a privilege rather than a right and that access thereto may be conditioned as the government pleases. But this basis, as the Court has said, “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right-privilege distinction, see “Government as Employer: Free Speech Generally,” infra.
590 Bailey v. Richardson, 341 U.S. 918 (1951). See also Washington v. McGrath, 341 U.S. 923 (1951), aff’g by an equally divided Court, 182 F.2d 375 (D.C. Cir. 1950). Although no opinions were written in these cases, several Justices expressed themselves on the issues in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), decided the same day.
591 339 U.S. 382 (1950). In a later case raising the same point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846 (1950).
592 339 U.S. at 408–09, 412.
593 339 U.S. at 415.
594 339 U.S. at 422.
595 339 U.S. at 445.
596 336 U.S. 36, 51–52 (1961). See also In re Anastaplo, 336 U.S. 82, 89 (1961). Justice Black, joined by Justice Douglas and Chief Justice Warren, dissented on the ground that the refusal to admit the two to the state bars was impermissibly based upon their beliefs. Id. at 56, 97.
597 Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
598 401 U.S. at 5–8; 401 U.S. at 28–29 (plurality opinions of Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar, respectively); 401 U.S. at 174–76, 178–80 (Justices Black and Douglas dissenting in Wadmond), 186–90 (Justices Marshall and Brennan dissenting in Wadmond).
599 401 U.S. at 17–19, 21–22 (Justices Blackmun, Harlan, and White, and Chief Justice Burger dissenting in Baird).
600 401 U.S. at 9–10; 401 U.S. at 31 (Justice Stewart concurring in Baird and Stolar, respectively). How far Justice Stewart would permit government to go is not made clear by his majority opinion in Wadmond. 401 U.S. at 161–66.