Vol. 9 No. 11 (November 1999) pp. 534-537.
THE FREEDOM NOT TO SPEAK by Haig Bosmajian. New York: New York University Press, 1999. 241pp. $38.00 cloth.
THE CASE FOR THE RIGHT TO SILENCE by Susan Easton. Second edition. Brookfield, Vermont: Ashgate Publishing Company, 1998. $74.95 cloth.
Reviewed by Judith A. Baer, Department of Political Science, Texas A&M
Is there such a thing as a right to silence? Yes: explicitly, in the privilege against self-incrimination, and, implicitly, in the guarantee of freedom of expression. These rights establish a relation between the First and Fifth Amendments as "intimate" as similar to that recognized among the Fourth, Fifth, and Sixth Amendments in cases like BOYD v. UNITED STATES (1886) and MIRANDA v. ARIZONA. (1966) The self-incrimination clause of the Fifth Amendment, wrote Justice Douglas in GRISWOLD v. CONNECTICUT (1965), "enables the individual to create a zone of privacy which government may not force him to surrender to his detriment." Similarly, the free speech clause of the First Amendment enables individuals to create zones of privacy and autonomy which government may not force them to surrender even for their benefit.
The right to silence is a right, limited but significant, to withhold assistance and co-operation from the state. The most obvious restriction on this right comes from the countervailing right of a criminal defendant to obtain witnesses, recognized in the Sixth Amendment. The idea that the right of compulsory process entails the duty to obey a subpoena, however reluctantly, causes so little controversy in Anglo-American law that neither Haig Bosmajian's account of coerced speech nor Susan Easton's analysis of self-incrimination law discusses it. This omission does not leave the authors bereft of material. Neither the British nor the U.S. government has
restricted its efforts to compel speech and testimony to what is required to protect defendants' rights. Indeed, many if not most instances of compelled participation attempt to do just the opposite. Easton's pointed remark about English jury trials and self-incrimination applies equally well to compulsory flag salutes and loyalty-security programs in this country: "a moral panic has flared up regarding a perceived problem which is not based on the actual scale of the problem. In each case, the panic has been followed by a draconian measure which extends far beyond the original class of suspects it was designed to deal with" (pp. 81-82.)
The arguments that justify the subpoena power in criminal trials do not apply to subpoenas from grand juries or legislative committees, let alone to compulsory loyalty oaths, flag salutes, or disclosure of associations. Yet all these types of forced speech have long histories in Europe and the British Isles and have been common in twentieth-century America. When Maimonides wrote, "it is a great good for a man not to swear at all" (p. 48), he was
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condemning loyalty oaths, not violations of the Third Commandment. His opposition to these oaths placed him in distinguished company, ranging from ancient Greece to the present. THE FREEDOM NOT TO SPEAK demonstrates that the opponents of compelled speech have had a lot to oppose. Inquisition, reformation, separation, revolution, and restoration brought continual demands for demonstrations of loyalty. Those who fled to the New World to avoid swearing allegiance were slow to relinquish the practice of making others do it. The Framers knew as much about forced utterance as they did about prohibited speech. The proposition that the freedom protected by the First Amendment includes freedom from both forms of coercion is difficult for even the minimalist to dispute. It is impossible to improve on Justice Robert Jackson's statement in W. VA. BD. OF EDUCATION v. BARNETTE (1943): "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in. . .matters of opinion or force citizens to confess by word or act their faith therein."
But, Jackson's resonant rhetoric has never reflected reality. By the time he wrote those words, forced speech had reappeared, now in a secular context. The flag salute controversy was preceded by the Red Scare and A. Mitchell Palmer and followed by the loyalty-security programs and Joseph McCarthy. Loyalty oaths and compulsory testimony, anti-communist hysteria and witch hunts, legislative investigations and contempt citations ruined reputations, careers, and lives. The inquisitors won the battle. "Since the early 1950s," wrote Nicholas Von Hoffman (1988), "no man's loyalty is presumed; he must manifest it, say it, swear it, and pledge it, not once but again and again."
Not even BARNETTE accomplished what Jackson said it did. Jehovah's Witnesses know they may refuse to salute the flag, but most of my students in constitutional law learn for the first time that they had the right to refuse-now that no one expects them to do it every school day. In the 1988 presidential campaign, George Bush successfully used his opponent's refusal to negate the decision against him. By including WALLACE v. JAFFREE (1985) and LEE v. WEISMAN (1992) among cases that support the right not to speak, Bosmajian confronts the problem the school prayer cases of 1962 and 1963 refused to face. Professions of faith, once instituted, are not voluntary. They are imposed hierarchically by superiors, or laterally by peers.
Readers who began the study of politics in the 1950s or 1960s will be familiar with the sorry history Bosmajian's book recalls. This audience is the choir to whom the author preaches, and he does a good job of reviving memories of the grave costs and negligible benefits of these policies. Forced utterance is hard to defend even on the utilitarian grounds that underlie much of the British opposition to procedural rights discussed by Easton. The persuasive value of Bosmajian's book for younger scholars-who now comprise the majority of the field-will depend on how critically they read and how well they know their history. The ability of American society to
absorb a handful of non-saluters without appreciable affect, and the spectacular self-destruction of the enemy whose existence supposedly justified all those oaths and investigations, may make readers wonder what all the fuss was about. But those who have read Sanford Levinson's (1988) discussion of loyalty oaths or who know that government
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investigations target scoundrels as well as heroes may suspect that Bosmajian has stacked the deck. Lillian Hellman's refusal to "cut my conscience to fit this year's fashions" (p. 129) sounds better than Dave Beck's refusal to say whether he knew Dave Beck, Jr.-especially to those ignorant of later attacks on Hellman's sincerity.
Bosmajian's preference for assertion over argument weakens his case for extending immunity from forced speech from individuals to groups. His defense of the right of the organizers of Boston's St. Patrick's Day Parade to exclude gay marchers, and of the Pacific Gas and Electric Company to refuse to send customers material criticizing it, uncritically accepts conventional notions of the public-private distinction. Discounting the public role played by utilities and civic groups is no more persuasive on its face than asserting that privately owned radio and television stations should be immune from content regulation. THE RIGHT NOT TO SPEAK is an unexceptionable piece of research, but the analysis is unoriginal and the writing pedestrian.
THE CASE FOR THE RIGHT TO SILENCE is not sparkling prose, either, although Anglophiles will enjoy reading it. But in research and analysis it is definitely the better of the two studies. Susan Easton is in the unenviable, if energizing, position of having lost the argument in the seven years between the publication of the first and second editions of her book. The Criminal Justice and Public Order Act 1994 (CJPOA) permits judges and juries to draw adverse inferences from a defendant's silence during interrogation and trial and effectively abolished the right to silence in British courts.
Easton does not flinch from engagement with the counter-arguments to her position. "Support for abolition
of the right to silence may depend on whether one views the ultimate aim of the law of evidence as facilitating
police efficiency or furthering the goal of rectitude of decision-making" (p. ix.) She uses the word "rectitude"
to mean "correctness," not "moral rightness." As she is aware, these are not synonymous: "It
is questionable whether rectitude of decision is or should be the prime goal of the judicial process." For
example, prohibition of torture and restrictions on the use of confessions reflect "the moral imperative that
it is better for the guilty to
be acquitted than to establish guilt by unjust means which violate human rights and dignity" (p. 160.) But she makes a good case that the right to silence can protect the innocent as well as the guilty. In England and America, the "common sense" understanding that the silent witnesses is hiding something is the common sense of judges and juries, not that of people who, for whatever reasons, fear the criminal justice system.
However, Easton does not shrink from the established fact that the right of silence allows some criminals to escape punishment. She even questions the
government's power to compel suspects to provide bodily samples, on the grounds that the distinction between verbal and physical evidence "rests on a crude version of Cartesian dualism" (p. xi.) To legal scholars, her discussion will recall the conflict between the crime control and due process models of criminal justice; to political theorists, it evokes the familiar conflict between rights and utility. The first half of Easton's book demonstrates that rights and utility do not always or necessarily conflict in the particular context of criminal trials. The second half juxtaposes Jeremy Bentham's dismissal of
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rights talk as "nonsense upon stilts" and his opposition to the right of silence as to defenses of rights by Ronald Dworkin and Denis Galligan. The rights theorists, she concludes, have won the argument. "Rights do not rest on irrational emotions or appeals to religious sanctions. Rather they can have a rational and non-metaphysical foundation, in the procedural protections of liberal democratic societies" (p. 186.) Easton's defense of the right to silence is persuasive on both rights-based
and utilitarian grounds. Like Bosmajian, she reminds the reader that the freedom to withhold co-operation from the state serves both pragmatic and normative ends.
Read together, these books depress and discourage the reader who is committed to liberal principles. The positions taken seem so just and reasonable, and, in Easton's case, so well argued. Both authors' conclusions reflect "rectitude" in both senses of the word. But who, other than the last remaining pointy-headed liberals, is listening? But the battle over coerced speech has to be fought over and over again, while the rights of criminal suspects continue to lose popular support in the English-speaking world. Apparently, the British are hard on the heels of the Americans in losing their beliefs that it is better for the guilty to escape than for the
innocent to be punished, or that the evident or established guilt of a defendant does not justify the abandonment of restraints on criminal procedure. The division of society into "them" and "us," and the association of rights with "their" interests, increasingly corrupts the state and the citizen alike.
Levinson, Sanford. 1988. CONSTITUTIONAL FAITH. Princeton, New Jersey:
Princeton University Press.
Von Hoffman, Nicholas. 1988. CITZEN COHN. New York: Doubleday.
BOYD v. UNITED STATES. 1886. 116 U.S. 616.
GRISWOLD v. CONNECTICUT. 1965. 381 U.S. 479.
LEE v. WEISMAN. 1992. 505 U.S. 577.
MIRANDA v. ARIZONA. 1966. 384 U.S. 436.
WALLACE v. JAFFREE. 1985. 472 U.S. 38.
WEST VIRGINIA BOARD OF EDUCATION v. BARNETTE. 1943. 319 U.S. 624.