Flag Day

(Note: Two familiar names worked on the case -- the 1A scholar Zechariah Chafee and future justice Abe Fortas, also known for his work on Gideon v. Wainwright, the counsel for the poor case.)

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.

Today is Flag Day but it is also West Virginia Bd. of Education v. Barnette Day, since the Supreme Court decided on this day in 1943 (during WWII)  to hand down their 6-3 opinion striking down a state law requiring schoolchildren, even those wishing not to do so for religious reasons, to pledge allegiance to the flag.  The Supreme Court ruled the other way a few years before with but one (strong) dissent.  New personnel and changing opinion of three justices resulted in a switch here.  We have here, however, an example of the limits of stare decisis.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The opinion is eloquently written and is well cited. It is in part done so because it reaffirms that there are limits to legislative supremacy and the courts have a duty to defend constitutional limits even in the face of democratically enacted laws.  The main opinion is framed as a matter of coerced speech though the concurrences also reference the freedom of religion (also framed as "conscience").  It is also compared to a "test oath" in one opinion. One issue (the original case and dissent by Justice Frankfurter refutes this) is the determination that the unity and so forth furthered by the ceremony does not justify limiting liberty here.  Compare this to a new law in New York ending exemptions for vaccinations, which some claim is also a threat to liberty.

The opinion also touches upon the power of symbols. The flag is a powerful symbol.  A 1907 opinion (Halter v. Nebraska) that upheld a limitation on use of flags in advertising (imagine if such a limit was present today in an age patriotic messaging is used repeatedly):

From the earliest periods in the history of the human race, banners, standards, and ensigns have been adopted as symbols of the power and history of the peoples who bore them. It is not, then, remarkable that the American people, acting through the legislative branch of the government, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the nation. Indeed, it would have been extraordinary if the government had started this country upon its marvelous career without giving it a flag to be recognized as the emblem of the American Republic. For that flag every true American has not simply an appreciation, but a deep affection.

Stromberg v. California (1931) was an important opening wedge on protecting freedom of speech, here accepting that peaceful expression of even possible revolution (symbolized by a red flag) is protected.  The flag salute case is a symbol itself of the breadth of what the flag stands for as seen years later when the issue was burning a flag in protest. Another relevant case would be Spence v. Washington (1974), which recognized the power of the flag and the legitimate governmental authority in various respects to honor it. Nonetheless, a law preventing altering it (here attachment of a peace symbol)  was illegitimate in part since doing that did not diminish the message of the flag.  One can say that even burning it is powerful largely because of its ultimate message.

One amusing case is Smith v. Goguen (1974) involving a flag sewn on the seat of one's pants been deemed to violate a rule prosecuting those "contemptuous" of the flag.  This was deemed too vague though Justice White separately explicitly relied on the problem being it was viewpoint based. Three justices actually dissented. Likewise, in Schact v. U.S. (1970), the Supreme Court struck down a regulation that allowed civilians to wear army uniforms in skits if done in a way that does not tend to discredit the military. Note Justice Stevens was among the dissenters in the flag burning cases. Street v. N.Y. (1969)  showed the sensitive nature of that matter, the Court closely divided in a case involving burning of the flag after a civil rights hero was killed; the case turned on the possibility that the person's words alone led to prosecution.

Flags of various kinds (even putting aside such things like those seen at NYPL branches) are very important to people. It what the object represents that is ultimately important as seen by something like a wedding ring or other symbol.  It is very appropriate, however, that an important civil liberty case was decided on this day since what our own flag represents is in a special way the constitutional system that governs us.