1. Majority opinion
a. Yes. Jackson, in one of his most eloquent (and in one of Dave’s favorite) opinions, held that the compulsory salute and pledge violated P’s First Am. rights.
1. Dave says: This decision came out in the middle of WWII!
Contrast the bravery of this decision with the cowardice of Holmes in
the WWI free speech cases.
b. Jackson held that there was no doubt that the flag salute is
a form of utterance. Here, the State requires that the individual to
communicate by word and sign his acceptance of the political ideas it thus
bespeaks. Because it forces the individual to communicate in such a
manner, there is a First Am. issue involved.
c. Jackson explained his principle and holding, “It is now a commonplace that censorship or suppression of expression of opinion is tolerated only when the expression presents a clear and present danger. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.”
1. Obviously, nowadays, the Brandenburg test would apply, but
did not during Jackson’s ruling because the case was not decided
until the 1950s. Jackson applied the old Whitney “Clear and Present
d. Jackson tied the importance of free speech to popular
sovereignty. “Those who begin coercive elimination of dissent soon
find themselves exterminating dissenters. Compulsory unification of
opinion achieves only the unanimity of the graveyard…Authority here
is to be controlled by public opinion, not public opinion by authority…If there is a 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.”
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