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OPINION NOVEMBER 23, 2020 ¦ 43

lower courts, thereby overturning its prior deci- circumstances which permit an exception, they do
sion in Gobitis. Critically, the decision in Barnette not now occur to us.”
framed the analysis in terms of freedom of speech Forty-six years later, the reasoning of Barnette
rather than religious liberty. The opinion, which was affirmed by the Supreme Court in the 1989
was written by newly-appointed Justice Robert decision of Texas v. Johnson. There, the court held
Jackson, is a masterpiece of legal writing that has that the First Amendment protected Gregory Lee
been admired by lawyers and scholars alike for its Johnson’s right to pour kerosene over an American
soaring statement of the fundamental freedom of flag and burn it in public during the Republican
speech guaranteed by the Bill of Rights. The legal National Convention. Relying on Barnette and
principles deriving from Barnette have carried the wonderful eloquence of Justice Jackson, the
through the decades; indeed, the case applies not court rejected arguments that anti-flag desecra-
just to obligatory flag saluting during the World tion statutes were necessary to preserve national
War Two-era, but also to Colin Kaepernick’s po- unity: “Recognizing that the right to differ is the
litical protest on behalf of oppressed African centerpiece of our First Amendment freedom a
Americans. government cannot mandate by fiat a feeling of
Justice Jackson began his opinion by agreeing unity in its citizens.” As noted in Justice Kennedy’s
with Justice Frankfurter that the flag was a nation- concurrence: “It is poignant but fundamental that
al symbol. The agreement stopped there, however, the flag protects those who hold it in contempt.”
with Justice Jackson noting that the flag and flag Collectively, these decisions illustrate a great
salutes are not totalitarian symbols requiring constitutional irony: we honor our flag precisely
slavish devotion. Instead, these symbols are a because it protects our right not to honor it all.
“primitive but effective way of communicating This is a form of free expression in America, a
ideas. Moreover, it is essential to recognize that a country where no one dictates what we must
person gets from a symbol the meaning he puts believe or how we may pledge allegiance to our
into it, and what is one man’s comfort and inspira- beliefs whatever they are.
tion is another’s jest and scorn.” Justice Jackson said it best: “To believe that
The court emphasized that national unity cannot patriotism will not flourish if patriotic ceremo-
be coerced by state-imposed rituals. The purpose nies are voluntary and spontaneous, instead of a
of the First Amendment is to protect “intellectual compulsory routine, is to make an unflattering
individualism and the rich cultural diversities” estimate of the appeal of our institutions to free
of America. In searing language, Justice Jackson minds. We can have intellectual individualism
warned that “those who begin coercive elimina- and the rich cultural diversities that we owe to
tion of dissent soon find themselves exterminating exceptional minds only at the price of occasional
dissenters. Compulsory unification of opinion eccentricity and abnormal attitudes… freedom to
achieves only the unanimity of the graveyard.” differ is not limited to things that do not matter
The decision firmly rejected the argument that much. That would be a mere shadow of freedom.
issues like compulsory flag salutes could be or- The test of its substances is the right to differ as to
dered by elected officials. In language quoted to things that touch the heart of the existing order.”
this day, Justice Jackson wrote: “If there is any fixed Long live football and stadiums filled with
star in our constitutional constellation, it is that no patriotic fans honoring our flag in any way they
official high or petty, can prescribe what shall be see fit.
orthodox in politics, nationalism, religion, or oth- ¦

er matters of opinion or force citizens to confess Paul Spinella is a Hartford-based Civil Rights
by word or act their faith therein. If there are any lawyer.

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