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Monday, September 25, 2017

Barnette at 75

John Q. Barrett reminds us that next June is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, which makes the short list of most important First Amendment decisions, both for its principles and its rhetoric. Given everything going on in the world of sports since last week, both are being put to the test.

Posted by Howard Wasserman on September 25, 2017 at 04:37 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

It strikes me that the powerful peroration of Frankfurter's dissent has far more direct bearing on our current controversy than the (to my taste somewhat kitschy) rhetoric in Jackson's opinion:

Of course, patriotism cannot be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation. Our constant preoccupation with the constitutionality of legislation, rather than with its wisdom, tends to preoccupation of the American mind with a false value. The tendency of focussing attention on constitutionality is to make constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech, much which should offend a free-spirited society is constitutional. Reliance for the most precious interests of civilization, therefore, must be found outside of their vindication in courts of law. Only a persistent positive translation of the faith of a free society into the convictions and habits and action of a community is the ultimate reliance against unabated temptations to fetter the human spirit.

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To be clear on how Frankfurter is relevant here, it is of course the case that -- despite the ridiculous attempts of some to suggest that private sports leagues' silencing of protest could be deemed state action because the President encouraged it on his personal Twitter account -- First Amendment *law* has nothing at all to say about this matter. You suggest that First Amendment "principles" and First Amendment "rhetoric" might have some bearing. But it is just because the First Amendment is ultimately a bit of (very old) positive law, with no application to this situation, that the citation of principles or rhetoric surrounding it is of no real persuasive power. People who support the private silencing of protest are free to say that (a) the First Amendment as interpreted by the courts may well be the law, but the law goes too far and is bad law, (b) that the First Amendment strikes just the right balance and has no proper application legally or by analogy in a private sphere, (c) that the whole notion of First Amendment "principles" or "values" as distinct from the legal content of the First Amendment is confused, or at best extremely unpersuasive; we only care, they would say, about First Amendment law because it's law, and to the extent something's merely a First Amendment "value," the fact that it has some pedigree in law is no reason to care about it if it isn't law itself - you need some argument for the value aside from its being a First Amendment value. Frankfurter here is quite right (whether or not he was right in Barnette itself) that relying on positive law and some marginally pretty rhetoric in judicial opinions interpreting it to create a free-spirited society is hopelessly, pathetically impoverished; what one needs to foster a free-spirited society is the "faith of a free society," and fussing over the First Amendment stymies it.

Posted by: Asher Steinberg | Sep 30, 2017 8:57:40 PM

Any day now the supreme court will strike down public and private school uniforms, finally extending the free speech to all minors.

Posted by: Tinkering | Oct 1, 2017 5:04:50 PM

Asher-

But what is the "faith of a free society"?

Are there other societies without written bills of rights and judicial review, like ours, but that have the "faith of a free society" that are freer than the U.S.?

I agree that we could go much further, like getting rid of plea-bargains, but our society as a whole seems to enjoy more freedoms (though we have a higher drinking age)than societies without judicial review of a written bill of rights.

For instance, we are one of the only countries in the world that allows atheists to openly deny, criticize, and mock Islam in the public square without violating blasphemy and/or hate-speech laws--the definition of a non-theocracy.

Posted by: Brimful of Asher | Oct 1, 2017 5:16:01 PM

https://sites.duke.edu/timurkuran/files/2017/09/Islam-Economic-Performance-Kuran-JEL-in-press.pdf

Given that critical thinking skills undergirdthe pace of innovation (Sternberg 1995) and hence economic success, why have market pressures not induced reforms in Islamic education itself? Why has the training of critical thinking been neglected, especially as it relates to Islam? And what are this neglect’s measurable consequences?
The fruitfulness of addressing such questions through modern empirical methods is brought into relief by Platas Izama (2015), who identifies a curious relationship between Muslim population share and educational attainment. In sub-Saharan Africa, she finds, Muslim educational attainment is inversely related to the Muslim share of the population. Thus, Muslims get less education, on average, if they live in a Muslim-majority country governed primarily by Muslims than if they live in a Muslim-minority country governed principally by non-Muslims.

Posted by: Ali | Oct 1, 2017 7:19:38 PM

https://sites.duke.edu/timurkuran/files/2017/09/Islam-Economic-Performance-Kuran-JEL-in-press.pdf

Yet the meaning of the term democracy could differ across countries. To Saudi respondents, democracy may mean meaningful elections and broader expressive freedoms, but not necessarily the freedom to criticize clerics or the right to challenge Saudi interpretations of Islam.
For their part, Italian respondents might take for granted the freedom to lambast Church policies on abortion; to them, democracy could conjure images of dysfunctional coalition governments, which would be absent from the Saudi respondents’ image of democracy. These cases illustrate the need for fine-tuned comparative data on political preference.

Posted by: Ali | Oct 1, 2017 8:04:24 PM

https://sites.duke.edu/timurkuran/files/2017/09/Islam-Economic-Performance-Kuran-JEL-in-press.pdf

Using a 207-country sample, North, Orman, and Gwin(2006) conduct a similar exercise. Their goal is to determine whether rule of law and the pervasiveness of corruption correlate with a country’s religious heritag. As indicators of religious heritage, they use the country’s largest religious group in either 1900 or 2000. Depending on the empirical specification, they find that corruption is lower and rule of law stronger in countries dominated by one or more of the following heritages: Protestantism, Catholicism, an Asian ethno-religion, and Hinduism. Under no specification does Islam contribute positively to rule of law or negatively to the pervasiveness of corruption. Countries with an Islamic heritage thus form a bottom tier of countries, along with those dominated by Orthodox Christianity, an African ethno-religion, or a Pacific Island ethno-religion.

Posted by: Ali | Oct 1, 2017 8:12:40 PM

https://sites.duke.edu/timurkuran/files/2017/09/Islam-Economic-Performance-Kuran-JEL-in-press.pdf

Muslims express high enthusiasm for democracy precisely because they tend to live under highly authoritarian regimes. Among the most salient characteristics of these regimes is that they lack judicial independence.

It was not outsiders who imposed on Muslim-governed countries the political patterns that characterize them today. The prevalence of authoritarianism has not resulted from boundaries that colonial powers drew after World War I, or from divide-and-rule policies. Like the roots of economic under-development, those of authoritarianism stretch back to early Islam. There are indications that authoritarianism is especially pronounced in Arab countries, which hold less than a quarter of the world’s Muslim population. One factor may have been early Islamic rulers’ dependence on armies and bureaucracies composed of imported slaves. This dependence would have kept local Arab elites weak and prevented the emergence of local aristocracies capable of establishing political checks and balances.

Posted by: Ali | Oct 1, 2017 8:18:00 PM

http://www.newsday.com/long-island/education/li-diocese-students-spectators-must-not-kneel-during-national-anthem-1.14294279

Long Island diocese of Rockville Center: Students, spectators must not kneel during national anthem–doing so could result in serious disciplinary action.

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https://www.yahoo.com/gma/texas-high-school-football-players-thrown-off-team-063311855–abc-news-topstories.html

Two Texas high school football players were thrown off their team literally moments after kneeling in protest during the national anthem before a game on Friday.

Posted by: Victory & Praise Christian Academy | Oct 1, 2017 8:54:34 PM

That speech from Frankfurter is nice and all, but who really disputes it? As to somewhat tiresome rhetoric, well, yeah, he had lots of it.

He thought in that specific situation that the provision was not unconstitutional. In other cases, including when funding of buses to parochial schools was involved, he felt the Supreme Court correctly found something unconstitutional. He was wrong in this case, especially in the sense he argued the forced pledge was important to advance patriotism to this degree.

Frankfurter was talking about "legislation" that might be bad but not unconstitutional. Not that no state action open to challenge at all was at issue. So, the application to this situation seems forced, except for some general platitude about how people constitutionalize things too much. People on both side of judicial disputes say that all the time, depending on whose ox is being gored. It's tedious if like many platitudes of some value.

Again, Frankfurter found certain legislation in violation of the 1A. The idea that the Supreme Court invalidating things by itself doesn't create a free society is to me rather obvious. But, court opinions can have some rhetorical force here. In the early days, justices believed their charging of juries were important moments to inform the public. Opinions can have "principles and its rhetoric" that inspire and inform. The opinions by themselves like great speeches won't save us. Is this somehow being disputed?

I think a strawman is being set forth. The OP speaks of the "principles and rhetoric" and the opinion does like the Gettysburg Address or Martin Luther King Jr.'s speeches have that which informs us. As to application to private action, the First Amendment sets forth values that aren't just in place because they are the law. They set forth things like equal protection and so forth do that are valuable goods. The fact they might only inspire and not bind doesn't change that. Martin Luther King Jr. didn't legally bind anyone. Should we disdain reference to his principles and rhetoric not being followed?


Posted by: Joe | Oct 1, 2017 9:00:48 PM

(Frankfurter actually was in dissent in Everson -- the big bus funding case -- but was in the majority [if arguably more forceful] in other cases raising Establishment Clause concerns. He didn't rely on the good judgment of the people in those cases.)

"we are one of the only countries in the world that allows atheists to openly deny, criticize, and mock Islam in the public square"

Does UK, Canada & other countries have blasphemy laws that regularly stops this? Even to the degree various states have hate speech laws, atheists can still "deny, criticize and mock" in many respects.

Atheists are not treated that well in various respects by the public at large & there remains discrimination against atheists. Many people basically continue to think they are unfit to hold office & someone who seems to think so might be elected to the US Senate in December.

Posted by: Joe | Oct 1, 2017 9:09:09 PM

http://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Speech

Mr. SMALL: Well, in 2008, when the European Union decided to pass this legislation, they gave nations in the European Union two years to put in place mechanisms that can actually charge and prosecute offenders. And in countries like the United Kingdom, these laws are just being enacted in the next few months. So this is a relatively new legislation, but countries like Poland, Germany, Austria and Hungary had mechanisms in place before this legislation.

BLOCK: You know, it's interesting to contrast these laws that we're talking about across Europe and in other countries, contrast that with the situation here in the United States. We just had the Supreme Court ruling yesterday that gave strong First Amendment protection to hateful speech, no matter how painful it might be. It seems that the U.S. is really the exception rather than the rule on that.

Mr. SMALL: Yes, it's definitely the exception.

Posted by: Definitely the Exception | Oct 1, 2017 9:54:24 PM

Zorach v. Clauson April 28, 1952

MR. JUSTICE FRANKFURTER, dissenting.

The Court tells us that, in the maintenance of its public schools, "[The State government] can close its doors or suspend its operations" so that its citizens may be free for religious devotions or instruction. If that were the issue, it would not rise to the dignity of a constitutional controversy. Of course a State may provide that the classes in its schools shall be dismissed, for any reason, or no reason, on fixed days, or for special occasions. The essence of this case is that the school system did not "close its doors" and did not "suspend its operations." There is all the difference in the world between letting the children out of school and letting some of them out of school into religious classes. If everyone is free to make what use he will of time wholly unconnected from schooling required by law -- those who wish sectarian instruction devoting it to that purpose, those who have ethical instruction at home, to that, those who study music, to that -- then of course there is no conflict with the Fourteenth Amendment.

Posted by: German Hotdog | Oct 2, 2017 1:05:28 AM

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