James W. Pfister: Three classic First Amendment cases on personhood

Three classic First Amendment cases illustrate the concept of “personhood” in constitutional law. My purpose here is to briefly describe these cases and then to conclude by summarizing what they tell us about personhood.

The first case is West Virginia State Board of Education v. Barnette (1943). It occurred during World War II. The state required that students salute the flag and say the Pledge of Allegiance. Barnette, a member of the Jehovah Witness faith, refused to comply. Justice Robert Jackson wrote the majority opinion. The question was whether the government can compel Barnette to “utter what is not in his mind.” Jackson found that the First Amendment protected the person to not salute the flag or say the Pledge, unless necessary “…to prevent grave and immediate danger to the interests the state may lawfully protect.” This is the strict scrutiny test and was not satisfied here.

Jackson discussed history and the bad effects that occur when government tries to coerce people to believe a governmental ideology; “…our Constitution was designed to avoid these ends by avoiding these beginnings.” He emphasized “intellectual individualism and … rich cultural diversities….” He spoke of the attractiveness of our institutions to allow for the voluntary adherence to them. Then he made the statement: “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.”

The next classic case is Cohen v. California (1971). Paul Cohen was against the Vietnam War and the draft. In the corridor of a courthouse he sported a jacket that was embroidered on the back with, “F…the Draft.” He was held guilty of “offensive conduct” by the state. This was not an obscenity case; it was a freedom of speech case. Justice John Harlan wrote the majority opinion. This was not a case of speech directed to inciting imminent lawless action, decorum of the courtroom (this was the corridor), or the narrow “fighting words” doctrine (a verbal battery with no issue content), where speech can be limited. Harlan wrote that in this area governmental officials cannot “make principled distinctions” and, thus, it is up to the individual for “matters of taste and style.” Also, a message can be an expression of emotion as well as cognition. He said that the offended person could simply avert her eyes. He wrote: “one man’s vulgarity is another’s lyric.”

Lastly, we have the flag-burning case, Texas v. Johnson (1989). During the Republican National Convention in Dallas in 1984, which nominated Ronald Reagan for president, Gregory Lee Johnson protested by burning the American flag. Johnson was arrested for “desecration of a venerated object.” Justice William Brennan wrote the majority opinion. This behavior was deemed to be symbolic speech protected by the First Amendment, being part of a political demonstration. Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that Government may not prohibit the expression of an idea simply because society finds the idea itself to be offensive or disagreeable.” The proper response would be more speech, to wave one’s own flag, to salute the flag that burns, or, as one person did here, give the flag a proper burial.

What do these cases teach us about personhood? It is the expression of the self and personality. Personhood allows for con-conformist behavior, that can be rude and offensive. There is no requirement of politeness or civility. It means autonomy of the individual and the privacy of faith and belief. The criminal code cannot be “content based,” outlawing spoken attitudes and behavior simply because they diverge from the cultural norm. For example, the person who owned the flag can file a criminal complaint; the complaint cannot be based on the idea the flag was a venerated object, but that it was his property. Speech which expresses a popular norm is not the test; it is the speech which is unpopular and offensive which tests the First Amendment, and is protected by it. It is the liberty we celebrate and cherish in the Declaration of Independence.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Three classic First Amendment cases on personhood