(Photo by Celal Gunes / Anadolu Agency via Getty Images) In 1943, as the end of World War II was nowhere in sight and when patriotic national unity around the defeat of fascist aggression from Germany and Japan was at its height, the US Supreme Court ruled in West Virginia State Board of Education v. Barnette that the free speech rights contained in the First Amendment barred public schools from forcing students to salute the American flag at assembly every morning. “If there is any 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,” wrote Justice Robert Jackson for the court. Justice Felix Frankfurter filed a passionate, and personal, dissent. As the court’s only Jewish member, he began his dissent with, “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.” This opening line set up a grave concern about the court’s majority opinion, elevating individual free speech rights over other fundamental […]
