(Image
via
Getty)
Now,
I
will
be
the
first
to
admit
that
I
did
not
do
the
best
in
Con
Law
—
each
day,
I
fought
to
stay
awake
and
my
win
record
looked
nothing
like
Floyd
“Money”
Mayweather’s.
But
some
things
I
managed
to
stay
awake
for.
The
War
Powers
arc
was
a
fun
time,
as
was
the
fast
one
the
justices
on
the
Court
pulled
where
they
granted
themselves
judicial
review.
Given
the
caveat
that
I
didn’t
CALI
our
legal
lore,
I’m
pretty
damned
sure
what
this
judge
did
counts
as
compelled
speech.
From
ABA
Journal:
A
judge
has
ordered
a
North
Carolina
woman
to
correct
the
record
and
take
responsibility
online
for
a
car
crash
that
killed
the
other
driver.Judge
Lou
Trosch
of
the
26th
Judicial
District
in
Mecklenburg
County,
North
Carolina,
sentenced
the
woman,
Breeana
McClain
of
Charlotte,
North
Carolina,
to
probation
without
a
driver’s
license
and
imposed
a
suspended
sentence
last
week,
along
with
the
extra
conditions.
She
had
pleaded
guilty
to
involuntary
manslaughter
and
had
already
spent
51
days
in
jail.“I
am
going
to
order,
as
part
of
her
judgment,
that
she
demonstrates
to
you
all
on
Facebook,
on
social
media,
on
her
GoFundMe
page,
that
she
takes
responsibility
for
what
she
did,”
Trosch
said,
according
to
reporting
by WCNC.
Trosch
also
ordered
McClain
to
tell
her
story
in
traffic
school.
That
don’t
sound
constitutional,
folks!
I
know
that
the
judge’s
response
to
the
tragedy
makes
sense
to
normal
people,
but
we
have
to
remember
that
no
matter
how
much
we
play
at
being
normies,
we
aren’t.
We’re
lawyers,
folks.
Thankfully,
some
bright
minds
at
Harvard
saw
through
the
temptation
to
be
reasonable
and
have
given
the
constitutionality
of
compelled
apologies
some
thought.
From
Harvard
Law
Review:
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.”
He
cited
the
Supreme
Court’s
rulings
in West
Virginia
State
Board
of
Education
v.
Barnette and Wooley
v.
Maynard
for
the
proposition
that
“at
the
least . . . the
State
may
compel
speech
only
if
necessary
to
prevent
a
grave
and
imminent danger.”
He
decried
the
majority’s
use
of
“a
presumed
rational
basis”
test,
concluding
that
“[t]he
First
Amendment
requires
more
from us.”
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.”
In
this
case,
he
found
that
“[t]he
State’s
showing
[did]
not
remotely
approach
those standards.”
As
unsavory
as
the
fact
patterns
of
this
case
and
the
case
that
led
to
the
penning
of
this
partial
dissent
are,
I
think
that
Judge
Bjorgen
is
right.
Being
forced
by
the
state
to
recant
one’s
guilt
and
shame
an
arbitrary
number
of
times
in
traffic
school
—
there
is
vagueness
on
the
amount
required,
it
could
be
once
or
it
could
be
several
times,
either
of
which
seem
to
be
arbitrarily
determined
by
the
judge’s
proclivities.
Compelling
Ms.
McClain
to
“demonstrate
that
she
take
responsibility
for
what
she
did”
on
Facebook,
various
social
medias,
and
her
GoFundMe…
I
know
this
can
seem
silly
but
these
are
our
soap
boxes
and
public
squares.
Sure,
to
the
degree
that
her
GoFundMe
page
fraudulently
entices
folks
to
give
her
money,
order
her
to
take
it
down
and
reimburse
those
who
were
defrauded.
But
you
can
do
that
without
making
the
offender
say
things
they
don’t
believe
—
or
even
if
they
do
—
don’t
wish
to
state
publicly.
Now,
for
added
credibility,
I’m
going
to
drop
the
part
of
the
Harvard
Law
Review
article
that
says
what
I
believe
for
me.
That’s
the
thing
about
academics,
they
move
through
arguments
by
a
sort
of
immaculate
conception.
Anyhoo,
here
it
is:
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.
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
rights 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.
Yeah,
that.
Now,
there
are
some
arguments
about
the
efficacy
of
apologies
in
theories
of
justice
that
have
a
focus
on
the
restorative
rather
than
the
punitive.
Great.
I
hear
that.
I
still
don’t
really
think
that
it
applies.
A
vital
component
of
apologies,
good
ones
at
least,
is
sincerity.
Sincere
apologies
are
freely
given
of
one’s
own
consent.
This
freedom
has
to
be
at
both
the
subjective
and
objective
levels.
That
may
sound
heady,
let
me
clarify.
Subjectively,
I
may
genuinely
feel
sorry
about
a
thing
and
wish
to
convey
that.
But
to
say
a
thing
freely
requires
objective
freedom
—
a
yes
only
means
yes
if
you
had
the
option
to
say
no.
Given
the
objective
context,
I
am
being
forced
to
apologize,
that
hinges
on
the
freedom
of
my
speech.
How
restorative
is
the
apology
really
if
the
receiver
knows
that,
despite
how
sincere
I
appeared
to
be
in
the
moment,
I
was
only
apologizing
because
the
Judge
told
me
to?
State
v.
KH-H
Washington
Court
of
Appeals
Upholds
Apology
Requirement
of
Juvenile’s
Sentence
[Harvard
Law
Review]
Judge
Orders
Defendant
To
Tell
Truth
On
Social
Media
After
She
Blamed
Victim
For
Car
Crash
[ABA
Journal]
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at cwilliams@abovethelaw.com and
by
tweet
at @WritesForRent.