Speech Clauses VII (Right Not to Speak) Lecture 19 Chapter 5 Speech Clauses VII (Right Not to Speak)

This Lecture More on the First Amendment Pages 267-276 The Right Not to Speak West Virginia State Board of Education v. Barnette (1943) Pledge of Allegiance Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) Protest of Don’t Ask Don’t Tell

Minersville School District v. Gobitis (1940) Another Jehovah’s Witness case Involved refusal to pledge allegiance or salute flag (Nazi reference on the latter) In an 8-1 decision, Frankfurter, J. upheld the law Was for the secular purpose of fostering patriotism

West Virginia State Board of Education v. Barnette (1943) Background After its win in Gobitis, the State Board of Education in West Virginia ruled that all students must recite the Pledge of Allegiance and salute the flag Failure to do so could lead to expulsion This could mean the child be declared delinquent and cause parents to be charged with violating the law Non-complying students could be sent to reform school The Jehovah’s Witness members here refused the salute One child was expelled They win the district court level where the Court finds they should not be compelled The School Board appealed

West Virginia State Board of Education v. Barnette- II Arguments For West Virginia State Board of Education The Gobitis decision is controlling law and nothing has changed since it was decided For Barnette and the Jehovah’s Witnesses Gobitis was anti-Jehovah’s Witness and should be overruled This law violates freedom of speech and freedom of religion This deprives children of an education for refusal to salute the flag The conduct of the students does not represent a clear and present danger of an evil that the government needed to stop

West Virginia State Board of Education v. Barnette- III Jackson, J. for a 6-3 Court Flag salute is a form of an utterance speech It is a symbol of the state Students were being coerced into communication Citizens can be free of coercion to communicate views to which they disagree Gobitis and any decisions based on it are overruled This case is more analogous to Stromberg v. California- red flag salute “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.“ Black and Douglas switched their votes from Gobitis and concurred jointly

West Virginia State Board of Education v. Barnette- IV Frankfurter, J. dissenting He does not believe that the Court can tell West Virginia no here Judicial restraint Frankfurter seemed to have taken this ruling as a personal affront He was very personal in his dissent about his Jewish heritage

Wooley v. Maynard (1977) Wooley v. Maynard (1977) Yet another Jehovah’s Witness case New Hampshire license plates- they say “Live Free or Die” It is the state motto (Court finds it was not ideologically neutral) The Maynards found this motto against their beliefs They covered it up on their license plate with tape They were often arrested and stopped They sued and won Burger, C.J. for a 6-3 Court “The right of individuals to hold a point of view different from the majority and to refuse to foster an idea they find morally objectionable.“ They did not have to be like a “mobile billboard” for the state’s message

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) Background At the beginning of the Clinton Administration, President Clinton had tried to lift the ban on gays serving openly in the military After public backlash, he agreed to a policy known as “Don’t Ask, Don’t Tell” Enter the Solomon Amendment in 1996 Colleges or universities had to grant military recruiters the same access as other employers or the could lose federal funding This was in response to them barring recruiters due to policy opposition FAIR opposed the policy and opposed military recruiters on campus FAIR sued saying that this was forced inclusion of military recruiters violated freedom of speech and association They sued to overturn it lost at district court, won at Court of Appeals

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.- II Arguments For Rumsfeld This is part of the provisions to raise and support an army and navy This does not interfere with a law school’s right to take this position If they feel that strongly, they can always decline the federal money For FAIR The amendment forces the law schools to talk about military recruiting It denies them the right to preach non-discrimination Forces association with recruiters The penalty is essentially a command

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.- III Roberts, C.J. rules for an 8-0 Court (Alito not participating) Congress has powers under it powers to raise and maintain an army and navy This is a substantial governmental interest to further This does not force laws schools to support any position on this issue This regulates conduct not speech The conduct is not expressive Does not violate the test in O’Brien They simply have to grant equal access This is not telling them what they must say Recruiting policies do not fall within Hurley Recruiters are not part of the law school therefore no association violation either It does not reflect an endorsement of federal policy

After this case Congress repeals “Don’t Ask, Don’t Tell” in 2010 This case is still good law however

Next Lecture More on the First Amendment Pages 276-284 Commercial Speech Bates v. State Bar of Arizona (1977) Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (1980)