¶25 (dissenting in part) — I agree with the majority’s analysis concluding that sufficient evidence supported the adjudication of guilt. I part with the majority, though, on the constitutional issue and would hold that requiring KH-H to write a letter of apology and confession offends the First Amendment to the United States Constitution.
¶26 In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Supreme Court held that a compelled flag salute and pledge of allegiance in public schools violated the First Amendment. The Court rested its holding on the recognition that
*425[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. If there are any circumstances which permit an exception, they do not now occur to us.
Barnette, 319 U.S. at 642. The compelled salute and pledge, the Court held,
transcends constitutional limitations . . . 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.
Id. at 642.
¶27 The Court expanded the reach of its rationale in Barnette by holding in Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), that the State may not compel individuals to display on their vehicles a license plate motto with which they disagree. At the core of the Court’s rationale was its conclusion that
the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U. S. 624, 633-634[, 63 S. Ct. 1178, 87 L. Ed. 1628] (1943); id., at 645 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of “individual freedom of mind.” Id., at 637.
Wooley, 430 U.S. at 714; see also Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974).
¶28 Although these holdings from Barnette and Wooley may suggest a per se condemnation of any compelled expression of attitude or opinion, that approach was not followed by either opinion. The Barnette Court held that
*426freedoms of speech and of press, of assembly, and of worship ... are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.
Barnette, 319 U.S. at 639. Wooley took a somewhat different approach, explaining that
[ijdentifying the Maynards’ interests as implicating First Amendment protections does not end our inquiry however. We must also determine whether the State’s countervailing interest is sufficiently compelling to justify requiring appellees to display the state motto on their license plates.
Wooley, 430 U.S. at 715-16. The principles on which Barnette and Wooley draw, read analogously with Brandenburg’s3 enduring rule that certain speech may be prohibited only if it is likely to incite imminent lawless action, suggest at the least that the State may compel speech only if necessary to prevent a grave and imminent danger. Whether the First Amendment erects a per se bar against compelled speech need not be addressed for purposes of this dissent.
¶29 Our case law also recognizes the presumptive limitation of constitutional rights of certain classes, such as prisoners. See, e.g.,Pell v. Procunier, 417 U.S. 817, 822, 826, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974). Similarly, a number of federal circuit court decisions have upheld probation conditions which limit First Amendment rights. Even prisons, though,
are not beyond the reach of the Constitution. . . . Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.
Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984).
¶30 Even if this authority allows some reduction in the First Amendment rights of adjudicated juveniles, the luster *427of the principles followed in Barnette and Wooley demands that their sacrifice rest on something more than a presumed rational basis. Yet that is all that the State or the majority offer.4
¶31 In the name of rehabilitation, the condition here at issue would force a citizen to apologize for an action even if he felt no remorse and to admit to a wrongful action even if he sincerely felt he was not in the wrong. If there is a sound and discriminating empirical basis for concluding that this sort of compulsion will nourish responsibility among juveniles, instead of simply schooling them in cynical manipulation, it is not before us in this appeal. Something more than a law review article or the factual assumptions of other courts is needed. Without that empirical and individualized basis, only the presumed best intentions of our system stand in the way of disquieting comparisons with other attempts at forced thought. The First Amendment requires more from us.
¶32 After Buckley v. Valeo,5 after Citizens United,6 we may justly wonder what remains of the marketplace of ideas theory of the First Amendment; as what was once a marketplace becomes monopolized by those with the means to buy both voice and decibel, as the oaths of public office *428become spoken more by those who best pleased the few with the means to purchase campaign persuasions. What remains, at the least, is the protection of that “sphere of intellect and spirit” spoken of in Barnette7 and the “individual freedom of mind” cited in Wooley.8 What remains is the less pragmatic, but more sublime purpose of protecting the free and incandescent workings of the human mind.
¶33 The restriction of what may be said does not restrict what may be thought. The prescription of what must be said, on the other hand, compels what is professed, and with that more closely touches the instruments of thought, more deeply trespasses on our crowning zone of privacy, on the beauties and mysteries of the mind. To guard these treasures, the compulsion of attitude and opinion here at issue, if not barred per se, should be allowed only if the strict standards of Barnette are met. The State’s showing does not remotely approach those standards. Therefore, I dissent.
Review granted at 184 Wn.2d 1010 (2015).
Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).
The majority is correct that under the rational basis test used in United States v. Clark, 918 F.2d 843, 848 (9th Cir. 1990), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir. 1998), the condition here at issue should be upheld. However, Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992) (internal quotation marks omitted) (quoting United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970)), held that
“[i]n passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.”
For the reasons here expressed, the deferential approach of Clark contradicts the principles that underlie both Barnette and Wooley. Therefore, Clark is not controlling.
Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).
319 U.S. at 642.
430 U.S. at 714.