Reviews | A test in Virginia of the right to silence
Vlaming was a highly regarded French teacher at West Point High School in West Point, Virginia. When a transgender student began to identify as male, Vlaming used the student’s newly chosen name. But, given his religious beliefs, he avoided masculine or feminine pronouns in class. Eventually, the superintendent said that Vlaming could only teach if he used the student’s preferred pronouns. Unwilling to compromise his beliefs, Vlaming was fired – not for what he said but for what he didn’t say.
Claiming, among other things, violations of his rights to free speech and freedom of religion under the Virginia Constitution, Vlaming sued the school district. After losing at trial, the Virginia Supreme Court agreed to hear his appeal. Recently, the First Liberty Institute submitted a memoir of friend of the court on behalf of the Center for Religion, Culture and Democracy and 18 academics. The brief argues that the right to silence is fundamental to our legal system and promotes freedom of expression and freedom of religion.
One of the most iconic cases of free speech, 1943 West Virginia v. Barrette, involved school officials forcing students to recite the Pledge of Allegiance. In upholding the right of students to remain silent, Justice Robert H. Jackson eloquently stated, “If there is a fixed star in our constitutional constellation, it is that no public servant, high or low, can prescribe what must be orthodox in matters of politics, nationalism, religion or other matters of opinion, or force citizens to verbally confess their faith. This right to silence not only underpins the First Amendment protection against forced speech, but many other rights as well.
Sometimes the right to silence is absolute. Examples include the right against self-incrimination, testimonial privileges for spouses and clergy, and the freedom of the press not to disclose its sources.
In other cases, the freedom of silence appears as the absence of the duty to speak. Consider the doctrine of caveat emptor (“let the buyer beware”), which provides that a landlord has no general obligation to disclose the condition of a property to a potential buyer.
Finally, in some contexts, the law even recognizes the creation of legal obligations by silence, for example, when someone opens their property as public accommodation, accepts goods offered, or acts in a way that involves the authority of others.
Often, the right to silence is rooted in a concern for integrity of conscience, not wanting a person to have to choose between betraying their religious beliefs, telling lies, or facing punishment. The right to silence also protects the right of dissidents and non-conformists because, without the right to silence, a tyrannical government can crush any opposition. It also underpins the presumption of innocence, religious freedom, and expectations of privacy.
In case of doubt, the law favors silence. Particular care should be taken to avoid coercing or motivating people to communicate propositions they do not believe to be true. The law allows people to choose between speaking and remaining silent to save them from the temptation to choose between truth and a lie.
Allowing government-run school officials to compel a teacher to use particular pronouns would be inconsistent with Virginia’s long tradition of civil liberty. Indeed, it would be much more consistent with the authoritarian zeal of the room of stars and the Puritans who coerced public confessions of alleged spiritual offenses in the 16th century.
Vlaming is not threatened with imprisonment, torture or death, as those who refused to speak did in medieval times. But he faces a school district that seems just as determined to crush what he sees as heresy. Today, many face the threat of losing their careers and professional reputations for refusing to repeat popular orthodoxy. The right to silence is capable of protecting Americans from these threats, just as it has protected minority views and opinions for centuries.