West Virginia State Board of Education v. Barnette 1943

Appellants: West Virginia State Board of Education, et al.

Appellees: Walter Barnette, et al.

Appellants' Claim: That a law requiring students to salute the American flag and say "The Pledge of Allegiance" was constitutional.

Chief Lawyer for Appellants: W. Holt Wooddell

Chief Lawyer for Appellees: Hayden C. Covington

Justices for the Court: Hugo Lafayette Black, William O. Douglas, Robert H. Jackson (writing for the Court), Frank Murphy, Wiley Blount Rutledge, Harlan Fiske Stone

Justices Dissenting: Felix Frankfurter, Stanley Forman Reed, Owen Josephus Roberts

Date of Decision: June 14, 1943

Decision: The law was unconstitutional because it violated the freedom of speech.

Significance: After Barnette, the right to freedom of speech prevents the government from forcing people to say things they do not believe.

"I pledge allegiance to the flag…."

Jehovah's Witnesses is a form of Christianity. Its members believe that obeying God is more important than obeying man's laws. One of the Bible's commands is that people should not worship anything except God. For this reason, Jehovah's Witnesses refuse to salute the American flag. They believe it is a form of worship that God forbids.

In Minersville School District v. Gobitis (1940), Jehovah's Witnesses in Minersville, Pennsylvania, challenged a state law requiring their children to salute the American flag in school. They said it violated the freedom of religion, which is protected by the First Amendment. The U.S. Supreme Court disagreed. It decided that schools can encourage national unity and respect for the government by requiring school children to say "The Pledge of Allegiance" each morning.

THE FLAG SALUTE

C an schoolchildren be compelled to state the Pledge of Allegiance or salute the U.S. flag? Those who say yes believe that children do not have a constitutional right to refuse to do so. Advocates say that loyalty to the nation and the government is important and that saluting the flag is one way to teach children to have loyalty for the country.

But those opposed to enforced flag salutes say that children should not have to make a statement of loyalty if they do not wish. To make them do so, in turn, makes the action worthless. They also believe that children who are compelled to say the Pledge of Allegiance or salute the flag may one day resent the country that forced them to make these false statements or gestures.

Play it again, Uncle Sam

The West Virginia Board of Education was encouraged by the Court's decision in Minersville. The Board decided to require all students and teachers in West Virginia to salute the flag and say "The Pledge of Allegiance" each day. The Board modified the salute after some people complained that it looked too much like the way German Nazis saluted Adolph Hitler. The Board refused, however, to give Jehovah's Witnesses an exception to the new rule. In fact, any student who did not say "The Pledge of Allegiance" could be expelled from school and treated like a juvenile delinquent.

Many Jehovah's Witnesses, including Walter Barnette, filed a lawsuit in federal court in West Virginia. They asked the court to prevent West Virginia from forcing their children to salute the flag. As in Minersville, the Jehovah's Witnesses argued that the law violated the freedom of religion by forcing their children to do something forbidden by their religion. This time, however, they also argued that the law violated the freedom of speech by forcing their children to say things they did not believe. The federal court ruled in favor of the Jehovah's Witnesses, so the Board of Education appealed to the U.S. Supreme Court.

Overruling Minersville

This time the Jehovah's Witnesses won. With a 6–3 vote, the Supreme Court affirmed (approved) the decision of the federal court in West Virginia. Writing for the Supreme Court, Justice Robert H. Jackson said that the case was a battle between the power of the government and the rights of individual people.

Justice Jackson agreed with the Board of Education that West Virginia was allowed to encourage patriotism. Justice Jackson said that all states could do so by requiring students to study American history and learn about the government. Learning about the laws and freedoms in America would foster respect for the government.

The government, however, cannot violate individual freedoms. One of those freedoms is the freedom of speech. The First Amendment states, "Congress shall make no law . . . abridging [limiting] the freedom of speech." State governments, including the West Virginia Board of Education, must also obey the freedom of speech under the Due Process Clause of the Fourteenth Amendment. (The Due Process Clause of the Fourteenth Amendment prevents state and local governments from violating a person's right to life, liberty [or freedom], and property.)

Justice Jackson said that saluting the American flag is a form of speech known as symbolism. Symbolism is the expression of thoughts and ideas using an object, like the flag, instead of only words. Justice Jackson said that requiring students to salute the flag forces them to say things they might not believe, which violates their freedom of speech.

THE FIRST PLEDGE OF ALLEGIANCE

T he year 1892 was the 400th anniversary of Christopher Columbus's voyage to America. To celebrate the event, a children's magazine called The Youth's Companion published "The Youth's Companion Flag Pledge." It said, "I pledge allegiance to my Flag and to the Republic for which it stands–one Nation indivisible–with liberty and justice for all." On the very first Columbus Day in 1892, twelve million children throughout the country recited the salute. Since then the words have been changed, and the salute is now called "The Pledge of Allegiance."

After Barnette, the freedom of speech includes not only the right to say what you believe, but also the right not to be forced to say something you do not believe. As Justices Hugo Lafayette Black and William O. Douglas explained in a separate opinion, "Love of country must spring from willing hearts and minds."

Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

Farish, Leah.The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

Kallen, Stuart A. The Pledge of Allegiance. Edina, MN: Abdo and Daughters, 1994.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

Stevens, Leonard A. Salute! The Case of the Bible vs. the Flag. New York: Coward, McCann and Geoghegan, Inc., 1973.

Swanson, June. I Pledge Allegiance. Minneapolis: Carolrhoda Books, 1990.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.