“…To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind…”

We were in Jefferson City yesterday to cover the opening of the 2018 legislative session from a side gallery in the House.

Rep. Bruce Franks, Jr. (D), yesterday, before the opening of the session.

KMOV‏ @KMOV
Missouri lawmaker raises fist during pledge http://dlvr.it/Q8lpzb
2:45 PM – 3 Jan 2018

We were looking in another direction and didn’t catch it. It was a silent gesture of protest.

Apparently a right wingnut media outlet is all atwitter.

We have been writing about this for years:

“…Compulsory unification of opinion achieves only the unanimity of the graveyard…” (September 24, 2017)
[….]
This was all settled in 1943:

WEST VIRGINIA STATE BOARD OF EDUCATION ET AL. v. BARNETTE ET AL., 319 U.S. 624

If you don’t like something that someone else says or does as a First Amendment expression of dissent, fine. Use the First Amendment to the best of your ability to disagree.

However, no official, high or petty…nor the government has a say in approving or disapproving the content of your First Amendment expression, including your choice to participate in or not participate in “patriotic” doctrine.

The Pledge of Allegiance was written by Francis Bellamy, a socialist minister, in the late 19th century for a children’s magazine with the intent that it was to be used by children in ceremonies celebrating the Columbian Exposition. The original text: “I pledge allegiance to my flag and to the republic for which it stands, one nation, indivisible, with liberty and justice for all.” Subsequent additions were made by others in the 1920s during the red scare (so immigrant children would know which flag they were saluting?) and during the Eisenhower Administration (because of fears of godless communism).

The U.S. Flag Code people keep citing as a point of law? It has the same force as Congressional resolutions commemorating motherhood, apple pie, and National Groundhog Day. By the way, that same flag code states that the image of the flag not be used as clothing or on disposable paper products (like napkins and plates) or on advertising. Good luck with that one, huh.

The Constitution and U.S. Supreme Court have long ago decided the primacy of the First Amendment.
[….]

Rep. Bruce Franks, Jr. (D), recognizing guests.

319 U.S. 624 West Virginia State Board of Education v. Barnette (No. 591) [1943]

….Symbols of State often convey political ideas, just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn….

….It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. 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. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind….

….Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard….

….But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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. If there are any circumstances which permit an exception, they do not now occur to us….

In a time of war, no less.

Rep. Bruce Franks, Jr. (D) after yesterday’s minority press conference in the House Lounge.

The next time someone clutches their pearls in distress about a raised fist, a bended knee, or a silent protest and tells you that these gestures shouldn’t be allowed simply reply, “That would be un-American.”

Previously:

HB 1586: thou shalt not kettle (December 11, 2017)

The opening of the legislative session – in the House – January 3, 2018 (January 3, 2017)