Public Prosecutor v. Basuki Tjahaja Purnama aka “Ahok”
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The U.S. Court of Appeals for the Eighth Circuit affirmed a decision by the U.S. District Court for the Western District of Missouri, Kansas City, that school vaccination requirements did not violate religious freedom or compel speech. The plaintiffs, a group of parents (on behalf of their children), challenged a form the state of Missouri required to be filed if the parents wanted to claim a religious exemption from mandatory immunizations for school children. The parents refused to do so, resulting in disenrollment of their children from school, and subsequently filed this suit claiming that the Missouri form (“Form 11”) violated their First and Fourteenth Amendment rights. The Eighth Circuit agreed with the district court’s ruling that Form 11 did not compel speech, restrict speech, or incidentally burden speech, and did not violate plaintiffs’ free speech rights. The Eighth Circuit also agreed with the district court’s dismissal of any hybrid rights claim stating that the plaintiffs were attempting to “mix-and- match rights to free speech” and that the case did not amount to a hybrid rights claim at all [p.10].
A group of parents (on behalf of their children—enrolled or seeking to reenroll in Missouri public schools), with serious religious objections to immunization, filed this suit against the Government of Missouri (in particular, the Missouri Department of Health & Senior Services (DHSS), various school districts, and various government employees in their official capacity).
In order to claim a religious exemption from having their children immunized, the parents were required to file their religious objections on a specific form (“Form 11”) with the Missouri Department of Health and Senior Services. Failure to do so resulted in disenrollment of the children from the school until the form was filed. Form 11 consisted of a message from DHSS and the option for parents to elect a religious exemption alongside a checklist of immunizations parents of the child wanted to refuse for religious reasons (including an “other” category) [p.3]. The entire text of the DHSS message stated the following:
“We strongly encourage you to immunize your child, but ultimately the decision is yours. Please discuss any concerns you have with a trusted healthcare provider or call the immunization coordinator at your local or state health department. Your final decision affects not only the health of your child, but also the rest of your family, the health of your child’s friends and their families, classmates, neighbors, and community. Unimmunized children have a greater risk of contracting and spreading vaccine-preventable diseases to babies who are too young to be fully immunized due to medical conditions. In the event of an outbreak of a vaccine-preventable disease within a particular facility, children who are not fully immunized or do not have documented laboratory evidence of immunity shall not be allowed to attend school or day care until the local health authority declares the designated outbreak or health emergency has ended.”
Instead of filing Form 11, some parents filed a separate statement of their objections to immunization and the Baker children were subsequently disenrolled from school until they filed the form. As a result, their parents filed this suit claiming that the message from DHSS on Form 11 amounted to “vaccine education” and therefore violated their rights to free speech (or unconstitutionally conditions their speech), free religious exercise, and equal protection, along with a hybrid rights claim [p.4].
In addition, the parents citing Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“[F]reedom of speech prohibits the government from telling people what they must say.”) claimed that the language in Form 11 compelled them to state the government’s position as their own [p.6)] and was therefore unconstitutional [p.4]. The district court dismissed all the plaintiffs’ claims upon first motion, and the Eighth Circuit affirmed this decision on appeal.
Circuit judges Gruender, Benton, and Stras heard this case. The central issues for the Court’s determination were whether Form 11 compelled the plaintiff’s speech; whether Form 11 abridged the free exercise of the plaintiffs’ religion and amounted to forced immunization education and; whether plaintiffs could correctly assert a hybrid right that requires strict scrutiny.
The Court determined that Form 11 did not compel the plaintiffs’ speech since it did “not require the plaintiffs to affiliate with DHSS’s immunization statement” [p.5]. The DHS in Form 11 stated the government’s position and the government is entitled to speak for itself and express its own views, Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). The existing facts, therefore, were different from the precedents cited by the plaintiffs in support of their motion where courts had deemed certain government requirements as unconstitutional. The present case was unlike West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) wherein the court deemed it unconstitutional to require “schoolchildren to recite the Pledge of Allegiance and to salute the flag.” It was also unlike Wooley v. Maynard, 430 U.S. 705, (1977) where the court deemed unconstitutional a law requiring New Hampshire motorists to display the state motto— “Live Free or Die”—on their license plates. In the present case, the government was speaking for itself and not on behalf of the parents.
The Court also pointed out that the language used in the Form (“you” and “your child”) was unlikely to portray to others (such as school officials) that the DHSS message was affiliated with the parents in some way.
The plaintiffs also argued that Form 11 precluded them from speaking out against the immunizations. However, the Court pointed out that “nothing in Missouri’s law or regulations precludes submitting additional statements of religious objection” [p. 6]. Under these circumstances, Form 11 was merely an administrative requirement set by the state, did not prohibit the parents from making additional objections to the schools, and therefore did not violate the plaintiffs’ free speech rights as it did not “compel speech, restrict speech, or incidentally burden speech” [p. 6].
The second issue the Court addressed in this case was whether Form 11 abridged the free exercise of the plaintiffs’ religion. The plaintiffs cited Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, in which the court considered whether submission of a self-certification form which triggered contraception coverage for employees, violated the religious beliefs of the plaintiffs. Here, the Court distinguished between Little Sisters and the submission of Form 11. Form 11 they stated, unlike Little Sisters of the Poor, “does not increase the number of vaccines produced or force their children to get immunized” [p.7]. Further, the Court categorized Form 11 as an Informed Consent Law as under Doe v. Parson, 960 F.3d 1115, 1119 (8th Cir. 2020) and held that the Form merely stated the ‘“government’s neutral and generally applicable position that immunization prevents childhood diseases, and thus should be required for school attendance”’ [p.8].
The Court also considered the plaintiffs’ claim that Form 11 amounted to forced immunization education and decided that the claim had no merit since plaintiffs’ pleadings do not mention whether their specific counties of residence have vaccine education requirements, and only note examples from other (non-party) counties [p.8]. Furthermore, even if vaccine education requirements were imposed in plaintiffs’ counties, the government would not be precluded from using its regulatory authority to “require county health officials to provide truthful information relevant to a parent’s decision to decline immunizations,” Planned Parenthood v. Rounds, 530 F.3d 724, 734–35 (8th Cir. 2008) (en banc) [p.8].
The Plaintiffs also argued that Form 11 targeted religious people and violated their right to equal protection under the Free Exercise Clause—an analysis that requires the use of the strict scrutiny standard, Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2260 (2020). On this claim, the Court decided that “Form 11 does not target religious believers or violate their right to equal protection” noting that the plaintiffs were not treated any differently from other parents seeking immunization exemptions and that the school did not specifically target them for unequal treatment [p. 9].
The third issue the Court addressed in this case was whether the plaintiffs had a hybrid right—an analysis that also requires the use of the strict scrutiny standard, Telescope Media Grp. v. Lucero, 936 F.3d 740, 759 (8th Cir. 2019). The Court noted that the plaintiffs attempted to “mix-and- match” a number of different claims—each of which fail when considered independently and therefore, “the class of hybrid situations in which the Free Exercise Clause in conjunction with other constitutional protections” may be argued, does not apply here [p.10].
Accordingly, the Court ruled that each of plaintiffs’ claims—rights to free speech, free exercise of religion, equal protection, bodily integrity, educational due process, and to direct the upbringing of their children—failed on their own (and as a hybrid rights claim) and affirmed the district court’s ruling [p.11].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case highlights the constant tension surrounding speech between state regulatory bodies and members of the public. There is a long line of precedent that discusses whether a government, by issuing a public message, is merely expressing its own views in an attempt to disburse information into the public realm, or if, by doing so, it is also requiring members of the public to adopt that message or affiliate themselves with the underlying ideology of that message. While Courts have struck as unconstitutional instances where the government compels the speech of its people as in Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61 (2006) “[F]reedom of speech prohibits the government from telling people what they must say,” it has also made clear that “A government entity has the right to speak for itself. It is entitled to say what it wishes, and to select the views that it wants to express,” Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009).
In balancing the two, the Court regularly, as was the case here, analyzes the precise language of the government’s message in order to ascertain whether it could be construed as content-neutral regulation or whether it compels the views of any given individual. A content-neutral regulation is constitutional if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest,” United States v. O’Brien, 391 U.S. 367, 377 (1968).
Here, the Court found there was “little risk” that recipients of Form 11 ‘“would believe that the parents were compelled to ‘mouth support for views they find objectionable,’, or ‘pledge allegiance’ to a state-sponsored message.”’ Therefore, while this case may be viewed as contracting expression for the public, the court’s decision may be deemed favorable to the government as it expands expression for public bodies so long as the material involved is content-neutral.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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