Compelled Speech and the Perils of ‘PruneYard v. Robins’

Compelled Speech and the Perils of ‘PruneYard v. Robins’

Humans are speakers. When we go to work, buy paintings, send birthday presents to friends, vote, and choose TV shows to watch at night, we don’t merely “do”—we say. We say what our preferences, ideals, and distastes are in the realms of commerce, art, love, and politics. 

But sometimes we show the world who we are by not speaking. By deliberately refraining from saying the Pledge of Allegiance, for example, we convey either disinterest in or opposition to what the flag represents. Thus, if our constant speaking serves an important expressive function, then our regular not speaking serves an important expressive function as well. Some libertarians and anarchists argue that the latter serves such an important function as to render compelled speech unjustifiable in every conceivable case. But we need not adopt this absolutist position in order to doubt the justifiability of the heavy-handed approach to compelled speech that the Supreme Court, pursuant to its decision in PruneYard Shopping Center v. Robins (1980), has asked us to embrace. 

The controversy in PruneYard erupted when a group of teenagers entered the PruneYard Shopping Center to circulate a petition concerning a United Nations resolution on Zionism. Enforcing the mall’s policy against circulating petitions, security guards kicked out the teenagers, who proceeded to argue in court that their right to circulate a petition at malls like PruneYard was enshrined in the California Constitution. In response, the shopping mall’s managers argued that they and other private property owners have a “First Amendment right not to be forced by the state” to use their “property as a forum for the speech” of members of the public.  

Speaking through Justice William Rehnquist, the Supreme Court sided with the teenagers, finding that a statute forcing the shopping mall to host these young speakers did not amount to an impermissible imposition on the shopping mall managers. The Court reasoned, in the first place, that because the mall was open to large numbers of people, those who encountered the teenagers were unlikely to assume that the views of these young speakers reflected the views of the shopping mall’s managers. Besides, if the managers were concerned that their own views would be conflated with those of the teenagers, the managers could always post signs indicating that the shopping mall’s management did not necessarily endorse the views of people speaking in the mall.

The Court also argued that because the state was not requiring the shopping mall managers to host any particular group of speakers but was instead requiring them to host speakers generally, the state was not using the shopping mall managers to promote a particular point of view. Against that backdrop, the Court concluded, any compulsion to speak in this case was on balance justified. 

Insofar as the Court, relying on its decision in PruneYard, would be prepared to deploy this reasoning in efforts to compel individuals (rather than corporations) to support speech with which those individuals would prefer not to associate, this reasoning is quite dangerous indeed. To see how, imagine that the leadership of some small town (say, Leith, North Dakota) declares, in the interest of “communal bonding,” that every town citizen must wear a tee shirt decorated by the citizen’s neighbors once a year. Surrounded by white supremacist neighbors, an anti-racist is thereby forced to wear a tee shirt adorned with swastikas on an annual basis. The anti-racist objects, arguing that it disgraces those who perished in the Holocaust for her to affix such an odious symbol to her person.

The Court, if guided by PruneYard, would presumably reject the anti-racist’s claim. For widespread knowledge of this annual “tee shirt decoration event” suggests that people will not conclude that the tee shirt’s anti-racist wearer actually supports Nazism. And, in any event, if the anti-racist is worried about the message that her tee shirt is conveying, she can always match her tee shirt with a hat that says, “I despise Nazism and am wearing this vile tee shirt only because I have a legal obligation to do so” (if she can fit all of that on one hat!). Moreover, the state is mandating, not that the anti-racist endorse any particular message, but “merely” that she serve as a walking forum for speech to be determined by private citizens. 

If the Court’s reasoning here would serve as adequate consolation to the anti-racist, then perhaps PruneYard is convincingly argued after all. But there are reasons to suppose that the anti-racist would not be—and should not be—satisfied. In the first place, potential speakers can have good reason to desire not to speak even when those speakers know that others would not consider the speakers’ speech “sincere.” It is the reason that some actors refuse to use the most vile racial slurs on stage, for example, and the reason that most refuse to engage in intimate sexual acts for an audience. No matter what others would think, the would-be speakers themselves would feel that they are acting discordant with their values. By the same token, the anti-racist would feel, probably appropriately, that she is being untrue to herself by wearing a swastika tee shirt, even if nobody would assume that her wearing the shirt signifies a genuine commitment to Nazism. 

Still, defenders of this hypothetical mandate—like the defenders of Rehnquist’s reasoning—might point out that the government itself would not be requiring the propagation of any particular message in this case and that, in practice, a multitude of views would probably make their way onto the anti-racist’s tee shirt. Perhaps this is right; even so, it hardly justifies the decree. Suppose instead that the law materializes during WWII amid the outbreak of hostilities between the Soviet Union and Germany. Even if just half of the anti-racist’s neighbors draw swastikas on the anti-racist’s shirt (and everyone else draws a hammer and sickle), the anti-racist can still rightly object to her being forced to display the swastika. And if the coerced individual is pacifistic or apolitical, she can rightly object to being forced to display either symbol. 

On these grounds, one can and ought to condemn the Court’s justification for siding with the teenaged protesters in PruneYard. This is not to say that the outcome of the case was wrong; perhaps corporations, being creatures of the state, have more in common with the state than they do with citizens, and perhaps corporations’ speech interests, therefore, should not be treated as solicitously as the speech interests of humans should be. However, it is to say that, given the centrality of speech to our self-definitions, (1) the general perception that compelled speech is insincere, (2) the possibility of disclaiming compelled speech, and (3) the state’s non-requirement of a particular type of speech, are not adequate justifications for requiring people to promote messages against their will.

The Irredeemable Racism of the Death Penalty

The Irredeemable Racism of the Death Penalty

When confronted with overwhelming evidence of a discriminatory state practice, a decent society responds in one of two ways: by trying to remove discrimination from the practice, or by scrapping the practice altogether. In the context of capital punishment, the Supreme Court has opted affirmatively for the former course of action. In 1987, the Court in McCleskey v. Kemp expressed its hope and conviction that, even without a wholesale abolition of capital punishment, any troubling racism in executions was destined to end through Court-facilitated adjustments to the ultimate punishment.

Nearly 35 years later, that conviction has proved unfounded. As we maneuver our way through a political moment pregnant with possibility—in which the foundations of our criminal justice system are under heightened scrutiny, and in which “abolitionists” debate “reformists” about the best path forward—we should be mindful of what the results of our national experiment with the death penalty suggest. As long as it retains tremendous power, the government will be tremendously dangerous. If government officials are in a position to discriminate in life-or-death siutations, Americans will continue to die because of discrimination. If our history with the death penalty is any indication, successfully taming the governmental beast cannot mean simply regulating (that is, making regular) the government’s exercise of all of its awesome powers. Instead, it must mean taking many of those powers away from the government outright.

Efforts on the high court to excise racism from the administration of the death penalty date back to 1963 (at the latest). In Rudolph v. Alabama, Frank Lee Rudolph, a black man in Alabama, petitioned the Supreme Court for review of his death sentence for raping a white woman. Although the Court ultimately declined to hear the case, three (outnumbered) justices argued that executions for rape raise important constitutional questions and that the Court, therefore, had good reason to weigh in. We now know that Justice Arthur Goldberg, who authored this dissenting opinion, was largely concerned about the death penalty’s disproportionate impact on black men convicted of raping white women. It was only at the insistence of Chief Justice Earl Warren—who apparently felt it necessary for the Court to sidestep the charged issue of black crime—that Goldberg did not mention race in his dissent to the denial of review of Rudolph’s case.

Those seeking to circumscribe the racialized system of capital punishment by ending executions for rape (of grown women) got their victory in 1977, when the Court ruled in Coker v. Georgia that executing people for rape was so disproportionate as to violate the 8th Amendment. Given the sordid history of the death penalty for rape as a mechanism of racial terrorism in the United States, this was a remarkable achievement. Even so, capital punishment (for other crimes) stayed in place, as did the plague of racism that infected it.

A decade after Coker, the Court addressed the racial issue head-on in McCleskey, where the majority suggested that it was possible to administer the death penalty in a sufficiently race-neutral way. Crucial to the majority opinion was the Court’s “Batson Doctrine,” named for a then-recent case in which the Court made it more difficult for prosecutors to strike potential jurors on racial grounds. The availability of Batson-based relief, the Court suggested, minimized the odds of unfair capital trials, thereby casting doubt on death penalty abolitionists’ contention that the death penalty was irredeemably racist in its application.

As Carol and Jordan Steiker have pointed out, the Court in McCleskey overstated its case. To be sure, Batson has and had made it easier to thwart prosecutorial attempts to strike jurors because of their race. However, the fact that prosecutorial teams can almost effortlessly concoct and claim benign, non-racial reasons for striking potential jurors of color means that many race-based peremptory challenges probably go unpunished. In any event, Batson failed to address other ways that racial prejudice can surface in death penalty cases. For example, Batson did nothing to remove prosecutors’ vast discretion over whether to seek the death penalty in the first place. Insofar as their implicit racial biases affect prosecutors’ assessment of the heinousness of various crimes, the exercise of this discretion can affect who lives and who dies.

The failure of the Court’s efforts to cleanse the death penalty of its racism is apparent in our own time. In 2018, the State of Georgia executed Kenneth Fults after one of the jurors in Fults’s case claimed post-trial that the “nigger got just what should have happened,” no matter if Fults “ever killed anybody.” Similarly shockingly, the African-American Andre Thomas, after he was found guilty of killing his “white estranged wife” and their child, was sentenced to death by exclusively white jurors—three of whom claimed to disfavor interracial romance. (The state’s conduct is even more shocking in light of the fact that Thomas is so mentally ill as to have removed and eaten his own eye.)

Those who believe that the death penalty has no appreciable race problem may consider these sorts of cases simple aberrations in a system otherwise designed to withstand attempts at racist infiltration. But the reality is that as long as powerful actors exercise (an inevitable) discretion over the death penalty’s application—by deciding whether to seek the death penalty, whether to grant clemency, and how to weigh mitigating factors in defendants’ individual cases—discrimination is likely to rear its ugly head in the penalty’s administration.

The clear lesson for those seeking to address abuses of American state power in other contexts is to eschew the utopianism, either sincere or feigned, that the Court has embraced in its retention of the death penalty. Reasonable people can disagree about the propriety of hard drug laws, the deployment of armed police officers in response to 911 calls, the placement of officers in public schools, and—for that matter—the death penalty. However, those who would embrace an extensive state presence in people’s lives should not be allowed to claim that the mammoth state—through diversity and sensitivity training, for example, or through peremptory challenge reforms—can be made nondiscriminatory. Simply put, efforts to rid a human institution of the apparently ineradicable human vulnerability to prejudice is doomed to failure. The only way to stop the state from abusing its power is to eliminate the power that the state would abuse.

Tommy Raskin is pursuing a J.D. at Harvard Law School. Readers are encouraged to research “Courting Death: The Supreme Court and Capital Punishment” by Jordan and Carol Steiker for more information.

Antiwar Minarchism

Antiwar Minarchism

This essay has two objectives. First, it will illustrate the differences between “minarchist” and “anarchist” understandings of international warfare. Second, it will demonstrate that international warfare generally violates minarchist principles. If it succeeds in this latter respect, devoted minarchists will finish this essay confident that they can and should protest militarism.

Let’s begin with some definitions. Ayn Rand labeled government “an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area.” Minarchists welcome this institution, but only in limited doses. They advocate a limited government, constituted of courts and “night watchmen,” whose sole objectives are to safeguard bodies, to protect private property, and to enforce legitimate contracts.

Anarchists argue that minarchists’ minimal government is not quite “minimal” enough. Rejecting all government, anarchists argue that no human institution should monopolize enforceable dispute resolution in a particular geographical area.

Non-anarchists may wonder: in the absence of a single court system, how would disputes get resolved? Different anarchists have different ideas, but the gist is that conflicting parties (or their representative defense agencies) would agree to submit their cases to independent judges. This cooperative system, anarchists note positively, would keep disputes out of the hands of largely unaccountable, prejudiced judges.

Now on to the matter at hand: war. Anarchists consider war the progeny of statism. Without states, anarchists figure, tyrants wouldn’t be able to conscript civilians into paying for and perpetrating large-scale attacks on foreigners.  Remembering the tremendous damage that adversarial governments caused during the Gulf War, for instance, anarchists declare defiantly, “This is the problem with government!”

Consistent minarchists have a different view. They remember the Gulf War and tell anarchists, “No, this is the problem with anarchy!”

Under domestic anarchy, minarchists find, a strong person can assault a weak person without any legal repercussions. Under international anarchy, minarchists again find, a strong country can assault a weak country without any legal repercussions. Viewing these types of anarchy as analogous (if not identical), minarchists consider the Gulf War an unfortunate consequence of international anarchy.

Among other disagreements, a resource dispute precipitated Iraq’s invasion of Kuwait in 1990. Iraq’s government furiously alleged that Kuwait was slant drilling into the Rumaila oil field. Had Iraq’s Saddam Hussein and Kuwait’s Jaber Al-Ahmad Al-Sabah been neighbors in a small American town, Saddam would have needed to sue the Kuwaiti government in order to secure recompense. That is, Saddam would have needed (1) to prove Kuwait’s guilt and (2) to allow the court to determine a fitting punishment. As we know, though, Iraq and Kuwait were two distinct countries, not two households living under a common government. No global army had the wherewithal to force Iraqi leaders and Kuwaiti leaders to resolve their disputes in a global court. Thus, Iraq had free reign to achieve its own vision of justice by attacking Kuwait.

True, the invasion did not go unpunished. In 1991, the United States government expelled Saddam Hussein from Kuwait and retaliated against Iraq. But America’s was not the response of a genuine minarchist superpower. A real minarchist superpower would have (1) used the least amount of force necessary to quell the violence in Kuwait and (2) forced the alleged Iraqi criminals to stand trial for their crimes. A global minarchist government would not have destroyed Iraqi infrastructure, killed hundreds (perhaps thousands) of civilians, or bombed swarms of retreating Iraqi troops on the “Highway of Death” (all of which the Americans did).

The reality, then, is that the United States government—by attacking masses of foreigners without giving them fair trials—acted as a vigilante during the First Gulf War. Similarly, NATO members acted as vigilantes when they facilitated Libyan rebels’ ouster and assassination of Muammar Gaddafi in 2011. Russia acts as a vigilante when it buttresses the murderous Bashar al-Assad in Syria. Saudi Arabia acts as a vigilante when it kills Yemeni civilians in the process of fighting Houthis.

Clearly, the United States, Russia, Saudi Arabia, and all other perpetrators of foreign intervention are not “objective” guarantors of world order. In our anarchic international system, they are self-appointed watchdogs that take matters into their own hands and literally get away with murder.

How should minarchists respond to this state of affairs? They ought to tell themselves: “In the absence of a limited global government, the countries of the world exist in a state of anarchy with each other, meaning that well-armed governments can assassinate foreigners with impunity. Therefore, minarchists and other peaceful people should try to keep the world’s 196 national governments away from each other’s throats. For if international wars continue, civilians will continue to get caught in the crossfire, and alleged ‘criminals’ will continue to get killed without trial.”

Some libertarians disagree. For his part, Richard Epstein argues that “we need Pax Americana in international affairs” in order to “snuff out a large number of troublemakers.” A libertarian American government, these interventionists argue, can and should confront criminals abroad in the same way it confronts criminals at home.

But if the United States really were to treat foreign criminals the way it treats domestic criminals, the United States would send actual police officers into foreign countries in order to arrest the alleged perpetrators. It would not maintain its current modus operandi of dropping bombs on foreign antagonists, accepting tremendous collateral damage, and demanding little accountability for the American agents who kill civilians.

With that being said, some minarchists might still believe that the United States’s interventions in Kosovo, Iraq, Syria, and Libya have helped more than harmed the cause of liberty. Fully evaluating the intricacies and failures of all these interventions will require separate essays. For now, though, we can observe that minarchist theory is hard to square with militaristic ideologies in today’s world. At the core of minarchism lies a respect for individual rights, including the right to life and the right to a fair trial. At the core of militarism lies an inadequate concern for civilians’ right to life and alleged criminals’ right to fair trials.

Thus, pending the (unlikely) creation of a global minarchist government, minarchists should join their anarchist friends in trying to limit the carnage that warring national governments produce in the international arena. Minarchists, anarchists, and other believers in individual rights do not always see eye to eye, but they should all recognize the dangers of war.

Tommy Raskin has contributed to Amherst Magazine, the Good Men Project, and Foreign Policy in Focus. He lives in Amherst, MA.

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