How Some Judges Compel Speech in Violation of the First Amendment

By | March 21, 2013

Usually when criminal lawyers talk about “compelled speech,” they’re talking about the Fifth Amendment.

The compelled speech I’m talking about here has to do with the First Amendment. The First Amendment of the United States Constitution gives you the right to say, or not say, whatever it is you want to say especially when it comes to politics. If you want to vote, then vote. If you think all of the candidates who wish to be elected are bums and you don’t want to vote for any of them, then don’t vote. It’s your right.

When a judge orders you as a condition of probation to support a political organization that has a specific legislative lobbying agenda with which you don’t agree, then you have been compelled to speak. That violates the First Amendment of the United States Constitution. That makes it illegal.

Let me be specific. The mothers against drunk driving organization has a specific legislative agenda here in Texas. Predictably, they want tougher laws against drunk driving. I don’t begrudge them that. They have free speech rights just like I do. Equally predictably, some of my clients who have been arrested for driving while intoxicated don’t agree with the legislative agenda promoted by mothers against drunk driving.

When a defendant accepts a plea agreement for probation, the plea offer made by the state does not specify that the defendant must pay $35 to attend the mothers against drunk driving victim impact panel. It is only after the client is placed on probation that he is sometimes unfairly surprised to learn that he is now contributing to a political organization the goals of which he does not support.

The sad fact is that though we have an intelligent and well-meaning judiciary in Travis County, some of them are compelling speech in violation of the First Amendment. They should know better.