Does freedom of speech include the right to shut up?
In Minersville School District v Gobitis (1940), the USA Supreme Court (the apex Court) had ruled, against Jehovah’s Witnesses, that public schools could compel students to salute the American Flag and to recite the Pledge of Allegiance despite the students’ religious objections to these practices.
Thereafter, the only dissenter in the Gobitis decision was appointed as the Chief Justice; and in West Virginia State Board Of Education v Barnette (1943), the Supreme Court revisited the Gobitis decision.
Based on the Gobitis decision, the Board of Education had issued regulations (1) compelling pupils (and teachers) in public schools to salute the American Flag, and (2) providing that refusal to salute the Flag shall be regarded as an act of insubordination. A ‘stiff-arm’ salute, with the right hand raised with palm turned up, was required, and the saluter had to recite: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.”
An “act of insubordination” would lead to automatic expulsion from school. And readmission would be denied until compliance. An expelled child was regarded as unlawfully absent, and his or her parents or guardians were liable to prosecution; and if convicted, were subject to a fine not exceeding USD 50 and imprisonment not exceeding 30 days.
On instruction of Barnette, a Jehovah’s Witness, his two daughters did not salute the Flag or recite the Pledge, and were expelled. On legal advice, so as to frustrate prosecution, Barnett had his daughters attend school each day, though the school sent them home each time. And Barnett applied to Court for an injunction (interdict) to restrain enforcement of the regulations against Jehovah’s Witnesses, as their religion forbade them from saluting or pledging to symbols, including symbols of political institutions.
Despite the doctrine of precedent, the Court of first instance (three judges) declined to follow the Gobitis decision, and found in favour of Barnett. The Board of Education received permission to appeal directly to the Supreme Court.
Three (of the nine) Supreme Court Justices, who had been part of the majority in the Gobitis decision, held against Barnett. However, the majority (six) held in favour of Barnett:
“We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. 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.”
“Words uttered under coercion are proof of loyalty to nothing but self- interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions.”
Note that freedom of speech (or expression) involves more than just uttering or writing words:
“There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind.”
The USA during the Second World War was a quite different place to present day South Africa. How would a case on modernised similar facts be decided in South Africa? The Courts pay great deference to both religion and to nation-building/reconciliation. An objector on religious grounds may well succeed, but an objector on any other ground (including opposition to enforced religion) may face an uphill battle.