Apologies serve many purposes: they may express remorse, effect reflection on the offense by an offender, offer some sense of healing to a victim, or humble the proud. For all of these reasons, many courts use apologies as a penal tool and require convicted defendants to offer an apology for their actions.1 Recently, in State v. KH–H,2 the Washington Court of Appeals, Division II, held that requiring a juvenile to write a letter of apology did not violate his First Amendment rights. The court’s focus on a reasonably related rehabilitative purpose gave short shrift to the question of compelled speech, with the court justifying its action under the doctrine of reduced scrutiny in cases involving convicted defendants. But to compel one to aver what he does not himself believe is the greatest violation of the freedom of speech,3 and the traditional justifications for a convicted-defendant exception to the compelled speech doctrine rely on unsubstantiated applications of criminal punishment theory and constitutional law. As a result, a higher level of scrutiny should be imposed on probation conditions implicating the core right against compelled speech — and forced apologies would likely fail under this inquiry. Washington missed a rare opportunity to engage a serious threat to First Amendment freedom.
K.H.-H. and C.R. were teenage students who attended the same high school.4 On October 1, 2012, K.H.-H. and C.R. went to C.R.’s house following school.5 The two were sitting on C.R.’s bed when K.H.-H. began to kiss her on the face and neck.6 She told him to “chill it or to back off.”7 Apparently undeterred, K.H.-H. pushed C.R. onto her back and straddled her, then began biting her neck.8 C.R. protested again, pushing at him and telling him to “‘stop,’ to get off her, and that it hurt.”9 K.H.-H. put his hand under C.R.’s shirt and bra in an attempt to touch her breasts and “reached into and ‘tr[ied] to undo [her] pants.’”10 C.R. grabbed her cell phone and threatened to call her father, prompting K.H.-H. to leave the house.11 C.R. noticed that her neck had been bruised from the bites, and showed the marks to her friend, J.S.12 J.S., after confronting K.H.-H. about the incident, informed a school official.13
K.H.-H. was charged with two counts of fourth-degree assault with sexual motivation: one for the incident with C.R. and another for an incident involving a different girl.14 He was found guilty in juvenile court with regard to the former incident and not guilty with regard to the latter.15 At the disposition hearing, the State requested that the court order K.H.-H. to address to C.R. “a sincere written letter of apology . . . mean[ing] an admission that he did what he was accused of what he’s doing [sic] and [is] sorry he put her in that position.”16 K.H.-H.’s counsel objected to the condition, contending that K.H.-H. maintained the right to control his speech.17 The court sentenced K.H.-H. to three months of community supervision and ordered that he “write a letter of apology to [C.R.] that is approved by the Probation Officer and the State.”18 K.H.-H. appealed his conviction and sentence, arguing that the State presented insufficient evidence that he assaulted C.R. with sexual motivation and that the apology condition of his sentence violated his rights under the First Amendment of the Federal Constitution and article I, section 5 of the Washington Constitution.19
The Washington Court of Appeals, Division II, affirmed.20 Writing for the panel, Judge Worswick21 observed that the unchallenged findings of fact were sufficient to support a finding of guilt.22 The trial court found that K.H.-H. touched C.R. without her consent and that the kisses, bites, and gropes were “harmful and offensive contacts” that satisfied the requirements of an assault with sexual motivation.23 The court dismissed K.H.-H.’s “mixed messages” defense,24 whereby he argued that the trial court omitted facts tending to show that C.R. did not verbally protest and “liked [K.H.-H.], felt attracted to him, and had previously . . . h[eld] hands and hugg[ed him].”25 Judge Worswick declared that the evaluation of facts was the province of the factfinder, and that the appellate court would not “reevaluate the persuasiveness of the evidence and the credibility of . . . testimony.”26 Turning to the compelled speech claim, Judge Worswick rested the majority’s analysis on the Ninth Circuit’s reasoning in United States v. Clark.27 The Clark court held that a forced public apology was constitutional if imposed “for permissible purposes, and . . . reasonably related to [those] purposes.”28 Judge Worswick found that the trial judge had ordered a public apology for the permissible purpose of rehabilitation and that the apology was reasonably related to that purpose, as “the juvenile court noted its concern that [K.H.-H.] would again offend based on his pattern of being disrespectful to women.”29 The Washington constitutional defense was unavailing because article I, section 5 had never been used to protect against compelled speech, and K.H.-H. failed to present reasons that the Washington Constitution should be broader than the Federal Constitution.30
Acting Chief Judge Bjorgen dissented in part. While he agreed with the panel that there was enough evidence to support a finding of guilt, he believed that the compelled letter of apology “offend[ed] the First Amendment.”31 He cited the Supreme Court’s rulings in West Virginia State Board of Education v. Barnette32 and Wooley v. Maynard33 for the proposition that “at the least . . . the State may compel speech only if necessary to prevent a grave and imminent danger.”34 He decried the majority’s use of “a presumed rational basis” test, concluding that “[t]he First Amendment requires more from us.”35 Instead, Acting Chief Judge Bjorgen argued that speech could be compelled only if the standards of Barnette were met — that is, if the apology were “necessary to prevent a grave and imminent danger.”36 In this case, he found that “[t]he State’s showing [did] not remotely approach those standards.”37
At first blush, the question at the heart of this case appears inane: A juvenile, convicted of an odious offense, faces no jail time and must merely apologize to begin to put the incident behind him. And yet he claims that his “freedom of speech” means that he need not say that he is sorry. But the principle at stake becomes clearer if the circumstances are changed slightly. Imagine, for example, that a juvenile is convicted of trespassing after refusing to move from a “Whites Only” section of a restaurant and told that he will serve jail time unless he sends a letter to the owner admitting fault and apologizing for the inconvenience.38 The implications manifest as much more dire indeed. Requiring an apology compels the juvenile to make a statement of belief that what he did was wrong and a statement of sentiment that he regrets what he did. Such an extraction should require far more than the good intentions of the sentencing judge.
Because a required apology involves making an offender say something he does not want to say, it implicates the Supreme Court’s compelled speech doctrine. This doctrine has generally held that the State cannot force its citizens to speak messages that they do not wish to deliver.39 Its strong, broad interdiction of coercing speech has been watered down by courts in the context of prison and probation, where constitutional rights are weakened. The justifications for reducing First Amendment rights40 in the context of compelled apologies, however, are insufficient to warrant the level of control sought by the government. There is another way to achieve many of the State’s objectives without putting to offenders the direct dilemma of either making an expression against their wishes or going to jail for their silence.
A natural place to begin is the Supreme Court’s compelled speech doctrine. The First Amendment’s “freedom of speech”41 has been understood as “necessarily comprising the decision of both what to say and what not to say.”42 Just as the State is not permitted to ban speech because it offends the sentiments of citizens,43 so too the State cannot require speech of citizens in support of its views.44 In the seminal case of Barnette, a group of West Virginia parents and children brought suit against a West Virginia school board resolution requiring students to salute the American flag or face expulsion.45 The Supreme Court, overruling a case decided just three years earlier,46 declared that the First Amendment could not countenance such an obligation: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox . . . or force citizens to confess by word or act their faith therein.”47
The prohibition against compelled speech was further strengthened in Maynard. There, a New Hampshire driver objected to the state’s motto of “Live Free or Die” on religious and political grounds and desired to obscure the phrase on his license plate.48 The Supreme Court enjoined the state from enforcing its laws preventing obstruction of the motto on First Amendment grounds.49 Finding that the state’s requirement that Maynard display its motto rendered his license plate a “‘mobile billboard’ for the State’s ideological message,” the Court described the burden as an obligation “to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”50 In broad terms, the Court stated: “[W]here the State’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.”51
Absent any other factors, K.H.-H.’s constitutional case would seem straightforward: the State’s demand of an apology requires nonfactual speech that K.H.-H. does not want to provide and is thus impermissible.52 Apologies include both an indication of the moral propriety of a law,53 and a public admission of fault.54 The State thus intended to use him as a vehicle for its message despite his personal disagreement.55 But the State in KH–H argued that this case was an exception to the general rule because K.H.-H.’s conviction diminished his right to be free from compelled speech.56 And indeed, those convicted and on probation do suffer restricted rights,57 with only a reasonable connection to “goals of probation” required for such restrictions.58 But this limited review for First Amendment rights of probationers makes little sense, and has led to judicial mischief across the country.
The justifications for lowered protections for probationers generally have been premised on one of two theories: the idea that probation is a grace granted to offenders or that the offender has waived any objection by accepting probation rather than jail.59 The Supreme Court has rejected the former,60 and the latter implicates the unconstitutional conditions doctrine.61 Contentions that a compelled apology is acceptable because the offender’s age reduces his right to speech are also unavailing.62 Thus, the only justification is the acknowledged reduction of First Amendment rights in the prison and probation contexts.63 But the rationale for equal restrictions for prisoners and probationers in the freedom-of-speech context makes little sense. First Amendment restrictions in a prison system serve different interests than do restrictions on a probationer, who is already interacting in some manner with society.64 Without the broad discretion afforded prison officials for institutional security,65 the only interests whose furtherance would justify a reduction of probationers’ First Amendment rights are protection of the public and rehabilitation.66 Neither is convincing as a motivation for reducing the level of scrutiny for compelled speech.
The government’s reliance on the need to protect the public makes some sense with regard to probability of harm. A citizen convicted of breaking the law, upon release to the public, is more likely to commit further crimes,67 and so the State’s suspicion that citizens on probation may break the law again may well be justified.68 But restrictions of free speech rights before they are exercised implicate the menace of prior restraints, a remedy long considered suspect in English and American speech jurisprudence.69 Circuit courts have reasoned, however, that some prior restraints of probationers are permissible for positive free speech rights (such as protest or association) on the rationale that exposure to situations similar to previous violations invites future ones70: the overeager protester may break the law in his zeal, so he is prevented from protesting.71 Yet even supposing that the First Amendment could countenance prior restraints for probationers, making a citizen speak a message not his own has little to do with stopping crimes. At best, it operates as a method of forcing a potential reoffender to reconsider his actions before attempting similar misdeeds in the future. This basis is better placed under the rubric of rehabilitation.
The rehabilitation argument boils down to the question of how much personal autonomy the Constitution shields in cases where a citizen has been shown to have broken the law. Many protected demonstrations of First Amendment speech have been curtailed in the name of rehabilitating criminals.72 The State clearly has a compelling interest in preventing future violations of the law and in either convincing law-breakers of the justness of the law or accustoming them to a law-abiding life. In the prison context, the Supreme Court has upheld the severe curtailment of all forms of leisure reading as an incentive to correct behavior.73 In the realm of probation, judges have been known to restrict the right to procreate as a condition.74 These restrictions reflect the fact that probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’”75 It is not clear, however, that the freedom from compelled speech is a “conditional liberty.” It can be distinguished from most other freedoms by the simple fact that it is a protection against a violation of the individual freedom of thought (an even greater violation than silencing76), tantamount to an attempted “inva[sion of] the sphere of intellect and spirit.”77 The danger must be “grave” indeed to warrant such forced professions.78
But the benefits of compelled apologies are more focused on punitive rather than rehabilitative purposes. A court-compelled apology is unlikely to effect true contrition or remorse; one commentator describes it as “a drop in the ocean of a convict’s socialization.”79 Rather than truly rehabilitate, forced speech is more likely at best to humiliate. Immanuel Kant described the purpose of forced apologies as retributive: “[T]he humiliation of the pride of such an offender . . . will compensate for the offense as like for like.”80 It is unclear how beneficial such humiliation will be in convincing offenders that a law is just and should be followed, but several scholars are skeptical.81
There is another way to achieve the rehabilitative objective sought by the State. If the government wishes to reward those who voluntarily express contrition before sentencing, it may do so.82 Indeed, rewarding voluntary contrition makes more sense, as it more closely aligns with the rehabilitation justification. Insincere apologies have been described as “worthless,”83 and serve mainly as an opportunity to humiliate the offender. True apologies help the offender, the victim, and society in general. At the same time, requiring a “sincere” apology from an offender84 forces him to either lie to the State and sell the apology or undergo an emotional transformation that changes his belief on the subject. Both are deeply problematic intrusions on the individual’s autonomy and run counter to the theory of the First Amendment. With regard to the latter, the “marketplace of ideas” relies on the conflict of beliefs in the hope that the truth will out.85 By adding false professions of belief, the State is artificially altering the market in an attempt to make its product more popular. But courts have already rejected this strategy.86
In KH–H, the Washington Court of Appeals was afforded a rare chance to address this problem. Given the short sentence duration and the coercive nature of the choice offered to offenders, most take the deal. An appellate court, removed from the conflict presented to a lower court,87 is likely the surest medium for removing this First Amendment violation. And there was no need to defer to the federal courts’ deficient reasoning in this realm.88 In nonetheless accepting the prosecution’s justification of “rehabilitation,” the court permitted the continuance of an egregious wrong in sentencing practices.
The implication of the extent of the “rehabilitation” justification is that courts can demand that civil disobedients recant and jail them for their defiance. The particularly severe consequences at play when the State wishes to compel a citizen to speak against his will and confess a belief in something with which he disagrees strongly militate against adopting a test of mere reasonable relationship to “rehabilitation,” with enormous deference on what constitutes rehabilitation. Rather, a higher level of scrutiny should serve to determine whether the government’s interest is truly compelling enough. In most cases, it will fail.
The behavior of which K.H.-H. was convicted was repugnant. And if the concern that K.H.-H. would continue to be disrespectful to women is well founded, Washington is right to denounce such a knavish attitude. But to convince him to announce the validity of its position, Washington must use persuasion, not coercion, notwithstanding his due conviction. As much as we might like to encourage contrition, when it comes to a choice between jail and a compelled apology, the First Amendment means never having to say you’re sorry.