An apology letter to a victim: a First Amendment violation?

State v. K. H.-H., No. 91934-8 (Wash. June 23, 2016).

Here’s an important case about the First Amendment. The juvenile offender here assaulted a female acquaintance. The juvenile court required him to write a “sincere written letter of apology” to the girl, admitting “he did he was accused of” and is “sorry he put her in that position.” The letter had to be approved by both the probation officer and the state. 

Does this sentence violate the First Amendment? Can the state compel an offender to speak in this way? 

To answer this question, the majority of the Washington Supreme Court employs a fairly lenient test. The First Amendment permitted the trial court to require the apology letter, the majority holds, as long as the letter was reasonably related to attaining some legitimate penological goal. And here, according to the majority, the letter passes that test, because it’s designed to rehabilitate the juvenile offender and acknowledge the victim’s injury. 

Justice Gordon McCloud, joined by two of her colleagues, dissents, believing that the First Amendment calls for closer scrutiny of the apology letter. Under the majority’s test, she argues, an “Alabama court could have ordered Dr. Martin Luther King, Jr., to write an apology to the state of Alabama rather than his ‘Letter from Birmingham Jail.’” The core problem, Justice Gordon McCloud argues, is that the trial court required the offender to express a particular point of view. If the court had simply asked the offender to write an essay pondering the effects of sexual assault on victims, that would be a different matter.