Cleveland State Law Review
flag salute cases, constitutional law, freedom of speech, freedom of expression
The flag salute cases have been a source of endless fascination for legal and historical scholars. Most of this large body of scholarship has focused on the apparent oddity of Justice Frankfurter's view that there was no constitutional infirmity in the "petty tyranny" of a governmental requirement that school children engage in a hypocritical affirmation of belief. Unfortunately, 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 precendent 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.
Stephen W. Gard, The Flag Salute Cases and the First Amendment, 31 Cleveland State Law Review 419 (1983)