Shelbi Shultz, Associate Member, University of Cincinnati Law Review
I. Introduction
As the Biden administration ramps up employee COVID-19 vaccination requirements, some Americans have attempted to evade these obligations by hiring legal counsel that contrive constitutional loopholes in vaccine mandates.[1] A new justification to vaccine resistance has emerged that specifically focuses on employee forced disclosure of vaccination status.[2] On October, 7, 2021, Pennsylvania Informed Consent Advocates, Inc. filed a complaint with the Eastern District of Pennsylvania federal district court against the University of Pennsylvania, U.S. Secretary of Labor Scott Ketcham, and U.S. Secretary of Health and Human Services, Xavier Becerra.[3] The complaint alleged that, by requiring employees to disclose their vaccination status, University of Pennsylvania compelled its employees to engage in political speech, which violated their First Amendment rights.[4]
Since the Pennsylvania District Court has not decided on the case yet, this article will tackle the constitutional issue of vaccination status disclosures and compelled speech. First, background on compelled political speech precedent will be provided. The article will use this context to theorize how the court should handle the Penn. Informed Consent Advoc., Inc. v. Univ. of Penn. Health Sys. case. Ultimately, this article will argue that requiring COVID-19 vaccination status disclosure does not infringe on an employee’s protection from compelled political speech under the First Amendment.
II. Background
The First Amendment protects the right to speak freely, but constitutional scholar Erwin Chemerinsky states, “just as there is a right to speak, so, it is clear, that there is a right to be silent and refrain from speaking.”[5] West Virginia State Board of Education v. Barnette is the seminal case on compelled political speech.[6] The case concerned a school board rule that required children to salute the American flag and recite the Pledge of Allegiance.[7] West Virginia Jehovah’s Witness children refused to conform with the rule—contending that saluting the flag violated their religious belief that God stands superior to government.[8] The school labelled them insubordinate and subject to expulsion, so the Jehovah’s Witnesses brought suit.[9]
The Court held that the school board could not require students to salute the American flag.[10] The Court reasoned that when the state compels an individual to salute a flag, “it requires the individual to communicate by word and sign the acceptance of the political ideas it thus bespeaks.”[11] Barnette serves as the first clarification that the government cannot “compel a person to publicly declare or affirm a personal belief.”[12]
The Supreme Court utilized similar logic in deciding Wooley v. Maynard, which involved individuals who opposed the inclusion of “Live Free or Die” on the New Hampshire state license plate.[13] The petitioners, Jehovah’s Witnesses, found the statement, “Live Free or Die,” to directly oppose their religious beliefs, so they covered up the statement on their license plate.[14] By obscuring a portion of their license plate, the plaintiffs violated New Hampshire law and were charged with a misdemeanor.[15]
In a suit challenging the validity of the law, the Supreme Court decided that the State cannot “constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.”[16] The Court likened the state slogan included on the license plate to a “mobile billboard for the State’s ideological message” that could be seen by hundreds of people every day.[17] Thus, the “Live Free or Die” motto on the license plate constituted compelled political speech for those who opposed the phrase, and they could not be forced to bear the phrase on their own property against their beliefs.
In a more recent case, Rumsfeld v. Forum for Academic & Institutional Rights, the Supreme Court considered the Solomon Amendment—a law that threatened to revoke federal funding from schools denying U.S. military recruiters access to facilities for recruitment.[18] Many law schools restricted military recruiting on their campuses in opposition to the military’s long-standing practice of sexual orientation-based discrimination, and the Solomon Amendment was passed to force law schools to allow military recruiters access to campus facilities.[19] A national association of law schools and faculty members brought suit, claiming that the Solomon Amendment infringed on their First Amendment rights, as it compelled them to support a policy they disapproved or lose necessary funding.[20]
The Supreme Court denied this reasoning, stating that the “Solomon Amendment neither limits what law schools may say nor requires them to say anything,” emphasizing that law schools “remain free…to express whatever views they may have on the military’s…policy, all while retaining the eligibility for federal funds.”[21] Essentially, the Solomon Amendment never compelled law schools to exhibit outright support for the military—the law just required them to host military recruiters on campus as they would any other recruiter. Thus, the Solomon Amendment “regulates conduct, not speech,” as it “affects what law schools must do…not what they may or may not say.”[22] Under this reasoning, the Court concluded that the Solomon Amendment did not compel political speech, so no First Amendment rights were infringed.[23]
III. Discussion
A. How Should the Pennsylvania District Court Decide?
Like the plaintiffs in the previously discussed case law who felt that the government compelled political speech, the Pennsylvania Informed Consent Advocates, Inc. also argue that the University of Pennsylvania—and government actors at large—have compelled employees to engage in political speech by disclosing their vaccination status.[24] In its complaint, the group claims that “vaccines have been politicized to a point where receiving or declining the vaccine has become a political act in the eyes of the public, and being compelled into discussing one’s vaccine status is compelling that person to engage in political speech.”[25]
Essentially, the argument hinges on the assumption that since vaccines are currently a contentious political topic, required status disclosures amount to compelled political speech. Based on Supreme Court precedent, this article will argue that employee vaccination status disclosure mandates do not fall under compelled political speech, and the Pennsylvania District Court decision should reflect that assertion.
The case at hand can be distinguished from Barnette and Wooley. Those cases established that the Constitution protects Americans from compelled public disclosure of political beliefs or opinions.[26] This precedent suggests that the First Amendment protection against compelling political speech applies to forced public acts not private disclosures. Although there is no specific standard for just how public a belief must be made, one can imply that privately disclosing vaccination status to an employer would likely not pass a public threshold.
Theoretically, if there was a public list displaying each employee’s vaccination status or if vaccination status was included next to an employee’s name on their nametag, then that would probably be compelled speech. Similar to Barnette and Wooley, these scenarios would constitute a public display of one’s status and (if we accept that vaccination status is inherently political) one’s political belief.[27]
In reality, a vaccination status disclosure is a record kept as private as an employee’s address or social security number. The employee is free to disclose that information more publicly if they desire to, but the mere fact that an employer requires the information does not equate to compelled speech. Under this logic, because citizenship status has also been regarded as a politically contentious topic at certain points in time, employees would not need to disclose this information, as it would be compelled political speech. This logic does not hold up under compelled speech doctrine.
Rumsfeld is similar to the issue at hand, and the Pennsylvania District Court should rule in a way that mirrors the Supreme Court’s Rumsfeld decision. Just as the Solomon Amendment was not found to compel a certain belief or support in the military, the vaccination status disclosure also does not necessarily reveal a support in the COVID-19 vaccine.[28] As the Supreme Court distinguished between speech and action in Rumsfeld, the vaccination status disclosure compels action, not speech.[29] Just as law schools begrudgingly hosted military recruiters on their campuses after Rumsfeld, employers must ask for vaccination status, and employees must disclose.[30] Beyond that, employees are free to remain silent or express content or discontent with the COVID-19 vaccine, as the disclosure does not restrict or compel public expression. Essentially, employees can say whatever they want about the vaccine, as long as they comply with the mandatory private disclosure.
Because of the case precedent discussed previously, the Pennsylvania District Court should rule that vaccination status disclosure is not protected under the First Amendment. The assumption that “requiring workers across America to disclose their vaccination status…forc[es] them to engage in un-sought-out, and individually undesirable, political speech” should not pass constitutional muster under the compelled speech doctrine.[31] There are other remedies that may be available to those who are resistant to the COVID-19 vaccine, such as religious and medical exemptions, but resistance to private disclosure is not protected under the First Amendment.
IV. Conclusion
The argument articulated in the Informed Consent Advocates complaint is not the first time that a party has obtusely attempted to evade the COVID-19 vaccine, and it more than likely will not be the last. The legal landscape on the COVID-19 front is constantly evolving and shows no sign of slowing any time soon. Hopefully the Pennsylvania District Court will settle the matter on vaccination status disclosures and compelled political speech. This decision would demonstrate that legal certainty can still exist even regarding an issue as uncertain as the COVID-19 Pandemic.
[1] Roy Mauder, Biden Orders Vaccination Mandates for Larger Employers, Federal Workforce, SHRM (Sept. 9, 2021), https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/federal-vaccine-mandate.aspx (On September 9, 2021, President Biden imposed a COVID-19 vaccine mandate on federal employees and employers with over 100 employees.); Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) (Although the case law is not particularly robust, there is some Supreme Court precedent that supports vaccine mandates. The case law goes all the way back to 1905 with Jacobson v. Massachusetts, which concerned a Cambridge, Massachusetts law that imposed a small pox vaccination requirement. The vaccination mandate was in response to the growing spread of small pox in Cambridge, and the case was brought by an individual who felt that the mandate was an excessive use of the state’s power. The Supreme Court concluded that the vaccination requirement was an appropriate use of the State’s power to protect public health and safety.).
[2] Complaint and Demand for Jury Trial, Penn. Informed Consent Advoc., Inc. v. Univ. of Penn. Health Sys., No. 2:21-cv-04415 (E.D. Penn. Oct., 7, 2021).
[3] Id. at 1.
[4] Id. at 2.
[5] U.S. Const. amend. I; Erwin Chemerinsky, Constitutional Law: Principles and Policies 1018 (Wolters Kluwer 5th ed. 2015).
[6] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
[7] Id. at 629; Minersville Sch. Dist. v. Gobitis, 310 U.S. 986 (1940); (Barnette overturned Gobitis, which held that schools could expel students for refusing to comply with a law that required school children to salute the American flag.).
[8] Id.
[9] Id.
[10] Id. at 632.
[11] Id. at 633.
[12] Amdt 1.2.11.1 Compelled Speech: Overview, Constitution Annotated: Analysis andInterpretation of the U.S. Constitution, https://constitution.congress.gov/browse/essay/amdt1_2_11_1/.
[13] Wooley v. Maynard, 430 U.S. 705, 706 (1977).
[14] Id. at 707.
[15] Id.
[16] Id. at 713.
[17] Id. at 715.
[18] Rumsfeld v. F. for Acad. & Instit. Rts., 547 U.S. 47 (2006).
[19] Id. at 51.
[20] Id. at 53.
[21] Id. at 60.
[22] Id.
[23] Id. at 61.
[24] Penn. Informed Consent Advoc., Inc., supra note 2, at 2.
[25] Id. at 1.
[26] See Barnette, 319 U.S. at 629 (The act of saluting the flag and pledging allegiance in the classroom represented an inherently public act.); Wooley, 403 U.S. at 705 (The phrase “Live Free or Die” was included in a place visible to the public on the petitioner’s property, and law prevented the motto from being covered up.).
[27] Id.
[28] Rumsfeld, 547 U.S. at 60.
[29] Id.
[30] Id.
[31] Penn. Informed Consent Advoc., Inc., supra note 2, at 1.
