West Virginia State Board of Education v. Barnette
319 U.S. 624 (1943)

  • West Virginia required that all students salute the flag and say the Pledge of Allegiance. Failure to do so made the student subject to disciplinary action.
  • Barnette, a member of a religious group, the Jehovah’s Witnesses, challenged the law, saying that compelled speech was an unconstitutional violation of their right to free speech and freedom of religion under the 1st Amendment.
    • Jehovah’s Witness doctrine forbids saluting flags. They consider it a form of idol-worship.
  • The Trial Court found for Barnette. West Virginia appealed.
    • West Virginia pointed to the recent case of Minersville School District v. Gobitis (310 U.S. 586 (1940)) (also involving the children of Jehovah’s Witnesses), in which the Court stated that the proper recourse was to try and change the school policy through the political process and not through the courts.
      • Aka Judicial Deference.
    • The Trial Court concluded that even though there was a US Supreme Court precedent set by Gobitis, changes in the makeup of the Supreme Court and comments made by Justices implied that Gobitis was no longer good law.
  • The US Supreme Court affirmed.
    • The US Supreme Court overruled Gobitis and found that the 1st Amendment prohibits compelled speech.
    • The Court found that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
    • The Court based this decision more on the freedom of speech aspects of the 1st Amendment, and less on the freedom of religion aspects. Perhaps that’s what made the decision different than the very similar case of Gobitis, where the decision focused on freedom of religion.
      • You don’t have to have a religious objection for not saluting, you can chose not to salute for any reason.
  • Basically, this case says that the 1st Amendment not only means that you are free to say whatever you want to, but you are also free to not say anything you don’t want to.