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Saturday, October 07, 2017

Barnette and flag-related speech

Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.

But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.

We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.

Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink

Comments

Hi Howard. I agree that there seems to be little recognition of, or respect for, the "right not to salute" aspect of Barnette. I didn't think that point was getting enough attention in the context of the NFL conflict, so I published this short piece:

https://www.usnews.com/opinion/op-ed/articles/2017-09-26/what-president-trump-doesnt-get-about-nfl-protests-and-freedom-of-speech

Posted by: Tim Zick | Oct 7, 2017 3:31:38 PM

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