Dear Prof. Blocher,
Thank you for taking the time to address the "right not to speak" issue with me
and the link. I suppose this right (upheld by the USSC) is that, a person has
the "right not to speak" sentiments that he doesn't hold.
I must admit I didn't consider this possible meaning, when this idea was
raised, seemingly, to parallel and support the right not to keep or bear arms.
The right to not keep or bear arms exists for some, since not all persons are
in the militia. For militia members, the right to not keep or bear arms is not
a settled legal question so far as my understanding goes. The legal framework
has clearly recognized that people may exercise moral judgements in the
decision whether to use arms, but to do so for official purposes to avoid armed
service without penalty requires recognition as not a member of the militia.
The speech parallel to Prof. Blocher's point would seem to suggest that militia
members might have selective discretion to, say, bear or not bear arms when
called, in effect telling government that their sentiment supported that war,
but doesn't support this one. I remember arguments like this during the
Vietnam War, but don't think these issues were legally resolved favoring this
view.
In summary, Prof. Blocher views the right not to speak as emanating from the
right of an individual to speak in accord with his views only. This "you can't
put words in my mouth" is a very narrow view for a so broadly-stated right. In
parallel, the right not to be armed would be an issue of individual sentiment,
making a government's call to service of militiamen refusable (I suppose).
I hope Prof. Blocher has become a member of this list and can respond as he
wishes. Until he is, I'll forward any comments he sends to me.
Phil
________________________________
From: Joseph Blocher <[email protected]>
To: "[email protected]" <[email protected]>
Sent: Tuesday, August 21, 2012 12:01 PM
Subject: Re: Background intelligence
Hi Mr. Lee,
A colleague just brought to my attention the brief discussion of my “Right Not
to Keep or Bear Arms” piece on the firearmsregprof listserv (about which I
wasn’t previously aware, but have just requested to join). Since you asked
about the right not to speak and didn’t get a very direct answer, I thought I’d
write separately to say that I can’t claim any credit for the idea – the
Supreme Court has recognized the existence of a right not to speak since at
least 1943. This page has a quick run-down on the major cases, if you are
interested:
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/compelledspeech.htm
To answer your question about when this matters, the cases involve efforts to
force people to salute the flag, or to bear a particular message on their
license plates, or to permit other speakers to use their property for speech.
I hope that’s helpful.
All best,
Joseph Blocher
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