State v. K.H.-H.

Gordon McCloud, J.

¶27 (dissenting) I agree with the majority that the First Amendment ordinarily bars the government from compelling us to speak in favor of a view*757point that is against our beliefs. Majority at 748-49; U.S. Const, amend. I. I also agree with the majority that forcing someone to utter a confession and apology that he or she does not, in his or her heart, believe constitutes compelled speech and thus would ordinarily violate this First Amendment protection. Majority at 749. Finally, I agree with the majority that a criminal defendant can be deprived of this fundamental right in certain circumstances. Id.

¶28 My agreement with the majority, however, ends there. The majority holds that the government can compel a juvenile offender to speak against his deeply held personal beliefs whenever the government thinks that it would be reasonable. See majority at 750. But controlling Supreme Court precedent developed in the most analogous context— that is, the First Amendment rights of prison inmates against government-compelled speech—holds that the government cannot deprive the convict of that right without an important government interest. Procunier v. Martinez, 416 U.S. 396, 413, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989) (overruling Martinez as to incoming mail into a prison because it implicates prison safety concerns, but not as to the prisoner’s own outgoing correspondence, where no such safety concerns exist). Here, that prerequisite is satisfied: rehabilitation of the juvenile is certainly an important government interest. But the First Amendment also requires the government to choose a narrowly tailored means of achieving its permissible interest before compelling a juvenile to endorse a viewpoint. See id.; State v. Bahl, 164 Wn.2d 739, 757, 193 P.3d 678 (2008). That prerequisite is lacking in this case. Compelling a false apology for a crime the defendant denies committing is far from the least restrictive means of achieving rehabilitation. In fact, it is probably the most ineffective way to achieve that result. I therefore respectfully dissent.

*758PROCEDURAL BACKGROUND

¶29 Following a bench trial, the juvenile court adjudicated K.H.-H., then a 17-year-old male, guilty of fourth degree assault with sexual motivation against a female classmate. Clerk’s Papers (CP) at 51; Verbatim Tr. of Proceedings (VTP) (Aug. 28, 2013) at 142. Despite this disposition, K.H.-H. maintains his innocence. VTP (Aug. 28, 2013) at 150.

¶30 During the disposition hearing, the court ordered as a condition of probation that K.H.-H. “[s] hall write a letter of apology to victim C.R. that is approved by the Probation Officer and the State.” CP at 52. To obtain the State’s approval, the letter needs to be a “sincere written letter of apology ... meaning] an admission that he did what he was accused of what he’s doing and sorry he put her in that position.” VTP (Aug. 28, 2013) at 149 (emphasis added). The court explained its reasoning for imposing this condition as follows:

I don’t know anything about you, other than what was presented in court, and my concern is, I don’t want you to get in trouble again, and my concern is about what, as I said, what I see as a pattern of, I guess, being disrespectful to women. They’re[6] both much younger than you were, and that’s of concern to me. So I want to make sure that there’s some counseling to at least address that, and to be able to, I think that you have a lot of respect for your mother, I don’t have any question about that, but in terms of peers who are younger than you, they warrant respect. So that’s going to be my ruling.

Id. at 156-57. Defense counsel expressly objected to this condition, arguing that K.H.-H. maintained a right to control his speech and declare his innocence even after the *759court’s disposition. Id. at 150-51. K.H.-H. contends the forced apology violates his freedom of speech under the First Amendment and article I, section 5 of the Washington Constitution.7

ANALYSIS

A. The State Ordinarily Cannot Compel Speech in Support of a Particular Viewpoint Absent the Strictest of Necessity

¶31 The majority correctly observes that this exact question is one of first impression for this court and the United States Supreme Court. Majority at 748. But we are not without guidance. Outside the context of probation conditions, compelled speech is generally unconstitutional. This is because “[i]f 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.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943).

¶32 This protection against compelled speech applies even when the expression would seem unobjectionable to most of us. E.g., id. at 641-42 (compulsory salute and pledge to the national flag); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (compulsory display of state motto on vehicle license plate). This is because the very purpose of the First Amendment is to “protect! ] the right of individuals to hold a point of view different from the majority and to refuse to foster... an idea they find morally *760objectionable.” Wooley, 430 U.S. at 715. The State, therefore, must generally present a compelling need before it can force a person to speak.

¶33 The Supreme Court has adopted two tests for analyzing the constitutionality of compelled speech. In Wooley, the compelled speech at issue was the compulsory display of New Hampshire’s state motto, “ ‘Live Free or Die,’ ” on vehicle license plates. Id. at 706-07. The Maynards challenged this motto as repugnant to their moral, religious, and political beliefs as members of the Jehovah’s Witnesses faith. Id. at 707. In striking down New Hampshire’s compulsory display law, the Supreme Court held that such laws must be narrowly tailored to achieve a legitimate and substantial governmental purpose. Id. at 716. According to the Supreme Court, ‘“[t]he breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.’” Id. at 716-17 (quoting Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)).

¶34 The Supreme Court adopted an even more protective First Amendment test in Barnette where, as here, the government compelled not just the passive display of speech but the express affirmation of a viewpoint—and did so with juveniles. Barnette, 319 U.S. at 633. In Barnette, the West Virginia State Board of Education adopted a resolution requiring students to salute the American flag and “ ‘pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.’ ” Id. at 628-29. The board made no exceptions, not even for the young Jehovah’s Witnesses. Id. at 628. The Court struck down the resolution as unconstitutional. It explained that the government cannot command such an involuntary affirmation unless it is narrowly tailored to address a clear and present danger. Id. at 633-34.

¶35 The majority does not dispute that forced apologies are generally unconstitutional under Barnette. It contends *761that a different, less protective test applies when the compulsion to speak is part of a criminal sentence or juvenile disposition. Majority at 749-50.1 agree, but the test the majority adopts strips away so many protections that it undermines the core holding of Barnette and conflicts in principle with decisions on free speech in the prison and probation context from both this court and sister jurisdictions.

B. The Supreme Court Has Applied Strict Scrutiny to Content-Based Restrictions on Free Speech Even in the Prison Context

¶36 We all agree that convicted and incarcerated persons can be deprived of many rights, including constitutional rights. Majority at 749. Indeed, as the Supreme Court has explained, it is a “familiar proposition that ‘[1]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’” Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) (alteration in original) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948)).

¶37 But this does not mean that an inmate loses all of his or her First Amendment rights at the prison door. Instead, the Supreme Court has held that even an imprisoned adult “retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system.” Id. Such objectives certainly include deterrence and rehabilitation. Id. at 822-23.

¶38 The Supreme Court, however, has never held that the goal of rehabilitation, alone, permits the judge or jailor to compel inmate or probationer speech with a specified content. Indeed, in Pell the Court was careful to distinguish content-neutral prison regulations that limit the avenues of communication available to inmates from prison regula*762tions that limit the content of the prisoner’s own speech. Id. at 824. According to the Court, as long as the “restriction operates in a neutral fashion, without regard to the content of the expression, it falls within the ‘appropriate rules and regulations’ to which ‘prisoners necessarily are subject.’” Id. at 828 (quoting Cruz v. Beto, 405 U.S. 319, 321, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972)). In contrast, prison restrictions that limit the content of an inmate’s own communications “must further an important or substantial governmental interest unrelated to the suppression of expression” and “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Martinez, 416 U.S. at 413. “Thus a [content-based] restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.” Id. at 413-14.8

¶39 Compelling speech that voices a specific viewpoint is obviously a content-based restriction. Riley v. Nat’l Fed’n of Blind of N. C., 487 U.S. 781, 795, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). This is because “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.” Id. Thus, it follows that Martinez— not Pell—should apply in the context of a prison regulation compelling speech with a specified viewpoint, and would require that such regulation be narrowly tailored to meet an important or substantial governmental interest. It also logically follows that we cannot choose a test that is less protective of the First Amendment where, as here, the offender who is compelled to confess and apologize is not an imprisoned adult but a released juvenile offender.

*763C. This Court Has Applied a Similar Important-Interest, Narrow-Tailoring Test to Content-Based Probation Conditions

¶40 Perhaps for that reason, this court has applied a similar test to probation conditions. As we explained in Bahl, “A [community custody] condition that constitutes a ‘[1] imitation[ ] upon fundamental rights’ is ‘permissible, provided [it is] imposed sensitively.’” 164 Wn.2d at 757 (most alterations in original) (quoting State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). This, we explained, means “a convict’s First Amendment right ‘ “may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.”’” Id. (quoting Riley, 121 Wn.2d at 37-38 (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974))). The decision we quoted, Malone, said that an even more protective test would likely apply if the First Amendment rights at issue were freedom of speech or religion, as opposed to the freedom of association at issue there. Malone, 502 F.2d at 556 (“The courts strive to protect freedom of speech, religion and racial equality, but freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.”).9 Thus, the majority correctly cites Bahl as requiring that probation conditions limiting free speech “be narrowly tailored to serve an important government interest and must be reasonably necessary to *764achieving that interest.” Majority at 751; Bahl, 164 Wn.2d at 757.

¶41 In spite of quoting and crediting that Bahl test, the majority declines to apply it. But it is our most recent case in the most analogous context, and it is neither incorrect nor harmful; hence, it remains controlling (and persuasive) authority. Bahl holds that a probation condition like the one in this case violates the First Amendment unless it both serves an “important government interest” and is “narrowly tailored” and “necessary to achieving that interest.” If the majority really applied that test here, the probation condition could not survive. According to the juvenile court, the governmental purpose for ordering K.H.-H. to write a letter of apology was to address K.H.-H.’s pattern of disrespect toward younger women. VTP (Aug. 28, 2013) at 156-57. But the juvenile court could have addressed this concern without infringing on K.H.-H.’s First Amendment rights—and could have done so far more effectively. For example, the court could have required K.H.-H. to write an essay on the lifelong effects that rape has on young victims.10 Instead, the court ordered K.H.-H. to write a letter of apology that includes a confession of wrongdoing. See CP at 52; VTP (Aug. 28, 2013) at 149. This is not narrowly tailored or necessary. As the Supreme Court has explained, it is one thing to provide education that tends to inspire a specific belief; it is another to short-cut this effort altogether with the substitution of a compulsory statement. Barnette, 319 U.S. at 631.

¶42 Not surprisingly, no one—not even the State—argues that the apology requirement imposed by the juvenile court in this case was a narrowly tailored means or “necessary” to achieve the permissible goal of rehabilitation. The *765majority’s decision to affirm shows that it is implicitly rejecting Bahl. Majority at 756.

¶43 In fact, the majority acknowledges that Bahl describes the First Amendment test using very different language from the language the majority ultimately borrows from Clark (see supra Part D below). Majority at 751. As discussed above, under Bahl, probation conditions that infringe on a defendant’s First Amendment rights must be “reasonably necessary to accomplish the essential state needs and public order.” 164 Wn.2d at 758. The majority dismisses Bahl’s express requirement that the condition be “reasonably necessary” as requiring no more than a “reasonable relationship” among the imposed condition, the underlying crime, and a sentencing purpose. See majority at 755-56. But that is not what Bahl says. Bahl says the condition must be “necessary.” This language cannot be set aside as superficial or cosmetic. It is constitutionally required in this context.

D. The Majority Adopts the Least Protective Test

¶44 In the place of the Bahl test, the majority adopts the least protective test—a highly deferential, rational-relationship test. Majority at 750, 755 (deferring to the sentencing court’s “broad discretion,” “broad authority,” and “wide latitude”). According to the majority, any compelled speech condition will be upheld against a First Amendment challenge as long as that condition is “related to the crime of which the offender was convicted [or adjudicated guilty]” and furthers some sentencing purpose. Majority at 755.

¶45 The majority relies primarily on the Ninth Circuit’s decision in United States v. Clark, 918 F.2d 843 (9th Cir. 1990), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir. 1988), for this deferential “related to the underlying crime” test. Majority at 752-53. In Clark, the trial court imposed a probation condition requiring two officers convicted of perjury to publish apologies and acknowledge that they had lied and betrayed the trust and confidence of the people. 918 F.2d at 845. The Ninth Circuit *766affirmed, adopting a very forgiving rational-relationship test: “The test for validity of probation conditions, even where preferred rights are affected, is ‘whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.’” Id. at 848 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 n.14 (9th Cir. 1975) (en banc)). Probation conditions satisfy the Clark test if “ ‘the sentencing judge imposed the conditions for permissible purposes, and ... the conditions are reasonably related to the purposes.’” Id. (quoting United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988)). The majority accurately cites the Clark test.

¶46 But it is not the Supreme Court’s test, it is not our court’s Bahl test, and it cannot be the First Amendment’s test. Under the majority’s and Clark’s test, the Alabama court could have ordered Dr. Martin Luther King Jr. to write an apology to the state of Alabama rather than his “Letter from Birmingham Jail.” The question for our court is not whether we like or hate that consequence as a policy matter. The question for us is only whether it is constitutional. Under the majority’s restatement of the Clark test, it might be. But under the First Amendment, analogous Supreme Court decisions, and Bahl, it is not: before the State can compel a person—even a juvenile offender—to speak and endorse a viewpoint, the State must not only justify the condition with an important governmental need but must also narrowly tailor that condition so that it compels no more speech than necessary to meet that need. Martinez, 416 U.S. at 413; Bahl, 164 Wn.2d at 757.

CONCLUSION

¶47 The juvenile court’s forced apology condition fails under any First Amendment test other than the majority’s highly deferential rational-relationship test borrowed from language in Clark. Under the Supreme Court’s test in Martinez, the government cannot restrict the content of a *767prison inmate’s speech in this context unless the restriction “further [s] an important or substantial governmental interest” and is narrowly tailored so that it infringes on “no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved.” 416 U.S. at 413. The compelled confession and apology in this case fails that narrow-tailoring requirement. Under the test we articulated in Bahl, the condition must be “ ‘reasonably necessary to accomplish the essential needs of the state and public order.’” Bahl, 164 Wn.2d at 757 (internal quotation marks omitted) (quoting Riley, 121 Wn.2d at 37-38). The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: “A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn." Barnette, 319 U.S. at 632-33.

¶48 I respectfully dissent.

Fairhurst and González, JJ., concur with Gordon McCloud, J.

The underlying case involved two alleged assaults against two different classmates, C.R. and E.O. The juvenile court acquitted K.H.-H. of the count against E.O. after video footage undermined E.O.’s account of what had transpired. VTP (Aug. 14, 2013) at 143-44.

Although forced apologies, especially ones that require an admission of guilt, may implicate a person’s right against self-incrimination under the Fifth Amendment to the federal constitution, K.H.-H. did not raise a Fifth Amendment challenge below or in his briefs to this court. See Wash. Court of Appeals oral argument, State v. K.H.-H., No. 45461-1-II (Feb. 27, 2015), at 2 min., 37 sec. (on file with court) (“We didn’t actually really raise a Fifth Amendment issue although I do think there are Fifth Amendment questions here.’’).

Later Supreme Court decisions certainly overruled the application of this rule to many prison situations. But they preserve its application to the single, limited situation at issue here, the convicted offender’s own speech: “Martinez [is] limited to regulations concerning outgoing [prisoner] correspondence.” Abbott, 490 U.S. at 413.

I agree with the majority that any reliance on freedom of association cases in the context of freedom of speech inquiries would be misplaced, see majority at 751, 752, because those cases describe a less exacting First Amendment analysis. See Riley, 121 Wn.2d at 37-38 (applying freedom of association analysis to restriction against associating with computer hackers and communicating on computer bulletin boards); Malone, 502 F.2d at 555 (banning participating with, belonging to, working for, or visiting certain establishments and organizations affiliated with the American Irish Republican movement); Birzon v. King, 469 F.2d 1241, 1241 (2d Cir. 1972) (prohibiting any association with persons having a criminal record). Notably, however, the decisions adopting those less protective tests addressed conditions restricting association, not conditions compelling association against the defendant’s will.

See In re T.M., 2012-Ohio-3408, ¶ 3, 2012 WL 3061851, 2012 Ohio App. LEXIS 2997, at *2-3 (affirming disposition order requiring the juvenile offender to write a 1,000-word essay on “ ‘why racism is wrong’ ” against First Amendment challenge). According to the court, an essay requirement does not implicate the First Amendment where the court merely chooses the topic of the essay that the juvenile is required to address. Id. ¶ 5.