��֭����

Legal Principle at Issue

Whether a compulsory flag-salute law for school children violates the 1st and 14th Amendments.

Action

Affirmed. The injunction against the state’s enforcement of the law at issue was granted.

(This audio from Free Speech Out Loud is also available on Apple Podcasts, Spotify, and all other podcast apps.)

Facts/Syllabus

The West Virginia State Board of Education adopted a resolution ordering that saluting the flag become “a regular part of the program of activities in the public schools,” and that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag.” It also provided that “refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.” Failure to conform was “insubordination,” dealt with by expulsion, and readmission was denied by statute until compliance. Meanwhile, the expelled child was “unlawfully absent,” and could be proceeded against as a delinquent. Parents or guardians were liable to prosecution, and, if convicted, were subject to fine not exceeding $50 and jail term not exceeding thirty days. The appellees, who identified as Jehovah’s Witnesses, brought suit in the United States District Court for an injunction to restrain enforcement of these laws and regulations. Jehovah’s Witnesses consider that the flag is a “graven image” within the meaning of the Biblical Second Commandment, and for that reason, they refuse to salute it.

Importance of Case

The Court overturned its decision in Minersville School District v. Gobitis (1940), finding that saluting the flag was a “form of utterance” that could not be compelled by the government without offending the Free Speech Clause of the First Amendment. Fostering national unity was an improper justification for infringing on constitutionally protected rights. The Court famously wrote: “If there is any fixed star in our constitutional constellation, it is 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.”