Yesterday’s “You are the judge” post concerned the issue of retaliation by the government against activity that is constitutionally protected. Click here.
For background on the actually case, you may check the story on CBS.
I thought it would be informative to reproduce some of the findings from the court’s decision because it discusses constitutional rights that we often take for granted – until we are the target. Please note that I have heavily edited the court’s opinion for the sake of brevity.
To summarize, the girls and their parents’ complaint was that the DA retaliated against them for asserting their constitutional rights. More specifically, the girls asserted their constitutional right to avoid the courses and their parents have asserted their constitutional right to direct the girls’ education and, because the girls’ pictures were not illegal, the only reason to prosecute them would be in retaliation for exercising their constitutional right not to participate in the program. The court agreed.
Constitutionally Protected Activity
The parents in this case have a Fourteenth Amendment right substantive due process right to be free from state interference with family relations.
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.
Indeed, the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court.
As early as 1923, the Supreme Court found that the liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control the education of their own.
The Supreme Court has long recognized that, in addition to restricting suppression of speech, the First Amendment may prevent the government from compelling individuals to express certain views.
This view exists because at the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration and adherence.
Among the categories of compelled speech found impermissible by the Supreme Court is government action that forces a private speaker to propagate a particular message chosen by the government.
Here, the girls will be compelled to write an essay that explains what they did wrong. Because they in no way violated the law, being compelled to describe their behavior as wrong on threat of a felony conviction forces them to express a belief they do not hold and thus violates their right to be free of compelled speech.
Government Retaliation
The Courts have held that an adverse action by the government sufficient to support a retaliation claim has occurred if the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his/her First Amendments Rights.
As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.
The court finds that the threat of a felony prosecution would deter an ordinary person from exercising her constitutional rights.
The Protected Activity Caused the Retaliation
The DA asserted that the photographs are “provocative,” but “provocative photos,” are not illegal under the law even when they involve minors.
The statute in question prohibits the distribution of images depicting a prohibited sexual act, and defines “prohibited sexual act” to mean “sexual intercourse . . . masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” The images here do not even remotely meet this definition.
The images in question could not possibly support a charge of child pornography. As such, the DA’s threat to charge the minor plaintiffs with a felony is not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program.
The fact that the DA continues to promise prosecution if the girls refuse to participate indicates that the charges are retaliation for their refusal to engage in compelled speech. In the case of the parents, this threat is an attempt to compel them to abandon their Fourteenth Amendment right to control their child’s upbringing.
