For 2305 - the right to not be coerced to make displays of patriotism was only established by the Supreme Court in the 1940s. It features a court case central to our discussion of both religious freedom and free speech.
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Kaepernick refused to stand as a form of political expression—to protest, he said, the oppression of African-Americans by the police and others. The Supreme Court case arose out of a related First Amendment right—to exercise the freedom of religion. In 1943, at the height of the Second World War, the court heard a challenge by a Jehovah’s Witness family to the expulsion of their daughters, Marie and Gathie Barnette, from a school in West Virginia. The sisters had been punished for refusing to salute the flag and repeat the Pledge of Allegiance, something state law required of students. (As Jehovah’s Witnesses, the parents did not believe in making such salutes and oaths.) Precedent was not on the Barnettes’ side. In 1940, the Court had heard a very similar case involving Lillian Gobitis, age twelve, and her brother William, age ten, whose parents were also Jehovah’s Witnesses and who were expelled from the public schools of the town of Minersville, Pennsylvania, for refusing to salute the national flag. In an eight-to-one decision in Minersville v. Board of Education, written by Felix Frankfurter, the court rejected students’ claim that their freedom of religion and speech should void the school’s decision to expel them. (Justice Harlan Stone was the lone dissenter.) “National unity is the basis of national security,” Frankfurter wrote. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”
What followed, three years later, was one of the great reversals in Supreme Court history. The Court had a new member—Robert Jackson.* More important, even amid the patriotic displays associated with the mobilization for war, the degradations of Nazi Germany had impressed themselves upon the American conscience. The result of the case flipped the result to a six-to-three victory for the family, and Jackson’s opinion in West Virginia State Board of Education v. Barnette stands as perhaps the greatest defense of freedom of expression ever formulated by a Supreme Court Justice—and, not incidentally, a useful message for the N.F.L.
The core idea in Jackson’s opinion is that freedom demands that those in power allow others to think for themselves. In nearly every line, Jackson’s opinion is haunted by the struggle on the battlefield against, in his phrase, “our present totalitarian enemies.” “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men,” Jackson wrote. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Such melodramatic phrasing may feel more appropriate for the worldwide crisis of that era than for the present one, but the message of tolerance also resonates on the less fraught setting of a football gridiron.
For more on West Virgina v Barnette click here.
For the decision in the case click here.