Stephen W. Gard


The doctrinal importance of the opinions of Justices Jackson and Frankfurter in the flag salute cases as contrasting statements on the interpretation of the freedom of speech guarantee of the first amendment and the function of the judiciary in preserving our most precious civil liberty has been almost wholly ignored. There are several reasons why an examination of the cases from this perspective is especially important. First, the major casebooks almost uniformly treat Barnette and Gobitis as freedom of religion cases and ignore Justice Jackson's significant contribution to free speech theory. Second, the flag salute controversy has been revived recently in several cases where the individual's motive for refusal to participate was not religiously based. Third, a proper appreciation of Barnette as an important free speech precedent is necessary to a proper understanding of the constitutionality of analogous governmental regulations, such as the requirement that individuals, litigants and spectators alike, stand in a courtroom at specified times as a gesture of respect. Finally, the United States Supreme Court has rediscovered Barnette, after years of desuetude, as a major doctrinal freedom of expression precedent.