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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

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

13. 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)