Reading West Virginia State Board of Education v. Barnette Supreme Court Case Excerpts

0:03 Hello and welcome to another Primary Source Close Read. My name is Josh and I’m excited today to be joined by Dr. Josh Dunn as we take a look at the court case of West Virginia State Board of Education v. Barnette. How are you, Josh? Doing great. Great to be with you. Thank you. So today this case involves the First Amendment

0:28 to the Constitution, freedom of speech and freedom of religion. So to start us off, Josh, could you give us some background on the First Amendment, specifically the free speech and freedom of religion clauses? Certainly. So in the First Amendment, you start off with the religion clauses

0:48 and you have the Establishment clause and then you have the Free Exercise clause and there’s some debate about what they initially meant. The establishment clause. That was pretty clear. It meant that there was going to be no national church. But then the Free Exercise clause also, it was pretty apparent, meant that there were some forms of religious exercise that were going to be protected.

1:10 And you could also see a position of neutrality in, I think, both clauses. Freedom of speech and then several other rights following. Freedom of speech is in the second half of the First Amendment. And I think for the Founders, they regarded free speech is essential to self government. And again, you can see that in the logic of those rights themselves. You have speech if you want to speak out

1:31 about something and you’re concerned about what government is doing, you’re going to want to use the press technology to reach more people, then you’re going to want other people to join with you, assemble, and then you got to petition the government for redress of grievances. So for the Founders, speech was essential to self-government and they also thought that you had a kind of property in your opinions as well.

1:53 And so this is grounded in your nature as a person. It would be in many circumstances improper for government and to intrude into that. Great. Now this specific case is going to involve public schools and questions around freedom of speech and freedom of religion.

2:13 Now, there had been a prior case, actually just a few years before this case, Minersville School District v. Gobitis. Could you tell us about that? And that’s going to help set the foundation of West Virginia v. Barnette? Yeah, so that case was decided just three years before West Virginia versus Barnette, and the issue was really the same.

2:36 It was a flag salute case. And Jehovah’s Witnesses in that case protested argue that it violated their religious doctrines and beliefs to have to essentially give a symbol in response to another government symbol. And it went all the way to the Supreme Court.

2:56 And the Supreme Court upheld the Pennsylvania law which allowed it. And the majority opinion was written by Justice Felix Frankfurter, and he made many arguments, including that the Supreme Court has no particular competence to make judgments about these kinds of things. They would also mean that the Supreme Court would be a national school board and so on.

3:18 And then also that inculcating patriotism would be a legitimate function of government. And all of those issues then rose again in West Virginia versus Barnette. Okay. So our constitutional question then for this case is does a compulsory flag salute for public school children violate the First Amendment?

3:40 So we talked about the First Amendment. Here it is, the text. So. The parents who brought this lawsuit, I know we’ve talked about both freedom of speech and freedom of religion. What arguments did they make when they initially brought their lawsuit?

4:01 So they argued again that this violated their freedom of religion, but then also they made free speech claims and eventually the case was decided primarily on free speech grounds. Officially, you would say it wasn’t a religion case in the end, even though that was the motivation for the parents because they regarded it as an intrusion into their into their religious doctrine and therefore their religious freedom.

4:25 But when you finally get to the Supreme Court decision, as we’ll see, really they grounded their decision on free speech claims. Great. Yeah. So really this case is kind of a duplicate of minersville then, would you say? It’s essentially the same? Right? It’s essentially the same issue, yeah. Great.

4:47 So let’s take a look then at the opinion. The majority ruled in favor of Barnette by a significant margin, I think. Was it unanimous in gobitus. I believe it was a significant margin in Govitis ruling the opposite way to essentially

5:11 reversed a large majority of them reversed, which is really interesting, and we can get into the reasons why they did that. But let’s take a look at the majority opinion here. What stands out to you here in this writing here. All right, so obviously in this quotation from the decision

5:34 written by Justice Jackson Justice Jackson, by the way, was known as one of the greatest writers to ever sit on the Supreme Court. And there are many memorable terms of phrase that he has in this opinion that are still quoted quite often today. But here he’s simply saying that, look, the Bill of Rights means that some things are not up for debate.

5:55 And so regardless of whether or not you think it would actually be a good idea for West Virginia to be able to impose this policy upon all the school children of West Virginia, that doesn’t mean that they’re allowed to. So as you can see from the very first clause there, to withdraw certain subjects from the vicissitudes of political controversy.

6:17 So regardless, again of what your position on this is or how salutary you think the policy might be, that doesn’t mean that you can therefore do it. That, again, the Constitution sets boundaries on what the government is allowed to do. Right? Yeah exactly.

6:38 And you’re talking about how Justice Jackson is a great writer. This is one of the most famous sentences from this case, and really one of the most famous sentences ever on the Bill of Rights and the First Amendment specifically, I would say.

6:58 And any further input on this specific paragraph? Yeah, so this is the most famous passage from the entire decision. This is the one that’s quoted most often. And here you see them. There are really two issues that they had to confront in this case, constitutional questions that they had to confront, which is one is symbolic speech.

7:19 Speech. That is, even if you aren’t using words, does that count as speech? And therefore it could fall underneath First Amendment protection. And the Supreme Court said yes. Now, there are debates to this day about how much conduct has to be imbued with communicative content in order to count his speech.

7:40 But the Court was clearly saying symbolic speech is speech. Right. So it’s speech. Then the question is, can the government force you to say something cannot force you to compel you to say something that you do not agree with? So that was the second issue, compelled speech. The first issue is symbolic speech. Second issue is can the government compelled speech or compelled speech?

8:00 And here, what is he saying? The government cannot compel you to profess your belief in something that you don’t actually believe in. This is beyond the bounds of government power. So this is a very clear standard. If you see the government telling you that you have to confess something, that you have to state your agreement with it, you almost certainly

8:24 can see the government risking a First Amendment challenge. Great. Yeah. Now, what’s really interesting about this case is that, like we said a couple of years earlier, the Court ruled the opposite way. And I think context is probably important in that, in that that was at the start

8:45 of World War Two, when Gobidas was decided, I believe, 1941, 1940, around there. And so you could argue that there was this sense of, like, we need to instill patriotism in our students. And so therefore, the government has a compelling reason

9:06 to require students to say the Pledge of Allegiance. Now, though, really, only two years later, I think they’re changing their mind. And in this concurrent opinion, I believe it’s just Hugo Black’s opinion here. He had originally ruled

9:26 in the opposite way in Goblins, and now he’s kind of explaining why he switched. What do you see in this passage? Why do you think him and some of the other Justices change their mind? Well, I don’t actually know about his personal thought processes that led him

9:47 to change his mind, other than what he wrote in the opinion. And I think it’s just that he became persuaded by the majority opinion, by Justice Jackson, and there were some Justices who changed their votes. But you also had significant changes in the composition of the Court. FDR had been able to point, several more justices to the Court who had a different position on this. So it was a combination of new Justices plus previous Justices who switch their votes.

10:12 And so obviously, here what you see the justice saying is that patriotism is not something that the government can instill by force, can’t compel people again to be patriotic, but instead it has to spring naturally from this.

10:32 And he, of course, is again addressing his very angry colleague, Justice Frankfurter, who wrote a very lengthy dissent criticizing the majority for overturning his opinion. Go by us. But once again, Frankfurter was reiterating in his dissent in this case that trying to instill

10:54 patriotism is something that’s a legitimate function of government. He obviously thought that it’s something that government can at least encourage. Yeah, and speaking of Justice Frankfurter, we’re going to let him have the last word here. He argued, like you said, for a number of reasons, why go by should continue to be precedent.

11:19 One of which he talks about here is that he doesn’t want the Court to get too involved in what he thinks is a policy question. Can you speak further to that? Certainly. So Justice Frankfurter was known as one of the great advocates of judicial restraint in Supreme Court history. And the idea of judicial restraint was

11:40 created by progressive legal scholars, constitutional scholars, in the late eighteen hundred s or early one nine hundred s. And Justice Frankfurter comes out of that school. And this descent in West Virginia versus Barnette is known as one of the two classic statements of judicial restraint by Supreme Court Justice. There are others, but one of the two, the other one was also written

12:03 by Justice Frankfurter himself, ironically, when the Supreme Court was once again overturning a previous decision that he had written. But what I think is essential for understanding his argument is that he did disagree with the majority on the merits. But there was something deeper for Justice Frankfurter, which is that he thought that if the Court decided more and more questions,

12:28 they would actually end up limiting the rights that Americans have. So sometimes this is framed as well, just as Frankfurter was unconcerned about the protection of individual rights while the majority was more concerned with it. And that’s not quite accurate. Instead, what Frankfurter thought was that the best place for citizens to protect their rights is through the political process.

12:48 And the more and more decisions that are decided through the Court, that means that people become less and less engaged in the political process, and some of those political muscles of citizenship which are necessary for preserving individual liberty are going to atrophy. So that’s where you could say, I don’t think it’s really a clash between

13:09 just protection of individual rights versus not protecting individual rights, but what’s the best mechanism for doing so great? Yeah, that’s fascinating. And that’s a perennial question in the United States of who should be the one. What’s the role of the Supreme Court in protecting our individual rights?

13:30 What’s the role of legislatures and protecting individual rights? So let’s return back to our original constitutional question. Does a compulsory flag slope for public school children violate the First Amendment? So 20 seconds or 30 seconds, how did the Court rule?

13:53 And does that still stand today? The Court ruled that, yes, it does violate the First Amendment because they said that symbolic speech can still count as speech even if you’re not using words. And then the second reason it violates the First Amendment is because the government cannot compel you to speak in support of something that you disagree with.

14:14 So compelled speech by the government is unconstitutional, right? And no changes in precedent today. Can a school require a student in a public school to say the Pledge of Allegiance? No, they cannot. And you still see controversy, though, because sometimes you will see cases where they’re teachers who have tried to compel

14:36 students or forced them to save the Pledge of Allegiance. And again, there is no litigation with that. But if you create some division within classrooms. Within schools. Within school districts to this day but most of the time. I think teachers understand that they are not allowed to do this.

14:56 But they are allowed to. Of course. Set aside time for students to say the Pledge of Allegiance. And they can require that students not be disruptive while others choose to save flexible agents if they decide to do that. Sure. Great. Well, thank you so much, Josh.

15:16 As always, very enjoyable to talk with you about this. The Bill of Rights recently released a homework help video on this exact Supreme Court case. So if your students are looking for a quick four minute refresher on the details of this case, be sure to check that out.

15:37 We’ll include a link to it. Now, if you’re looking for any other materials, e, lessons, podcasts, anything, we have it for you. So be sure to check out our website for that. We release videos every week. Thanks for joining.