Note: This is an educational course, not legal advice.
Freedom of speech includes the freedom not to speak, and the freedom to join with others to speak. These ideas follow from the content cases and from campaign speech, where money and association came up.
Why it works
Barnette's principle runs through later cases. In Wooley v. Maynard (1977) New Hampshire could not punish a driver for covering the motto "Live Free or Die" on his license plate. Association. In NAACP v. Alabama ex rel. Patterson (1958) Alabama could not force the NAACP to hand over its membership lists, because members could face reprisals; the freedom to associate for expression includes privacy in one's associations. In Roberts v. United States Jaycees (1984) a state could require a large civic group to admit women, because that did not impair its ability to express its views. But in Boy Scouts of America v. Dale (2000) the Court held, 5 to 4, that applying a state public-accommodations law to require a private group to accept an adult leader against its stated views would significantly burden its expressive association. Compelled speech and public-accommodations laws met in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995). Massachusetts courts had applied the state's public-accommodations law to require the private organizers of Boston's St. Patrick's Day parade to include a group marching under its own banner. A unanimous Court (Justice Souter) held that a parade is expression, so the state could not make the organizers carry a message they chose not to convey; the law itself, which bars refusing service to people, remained valid in ordinary settings.
Key idea
Government may not compel people to express its message (West Virginia State Board of Education v. Barnette (1943), overruling Gobitis; Wooley v. Maynard (1977)). The First Amendment protects expressive association, including privacy of membership (NAACP v. Alabama ex rel. Patterson (1958)) and, in some cases, a group's choice of leaders (Boy Scouts of America v. Dale (2000)).
Worked example: A pledge
A public school requires every student to recite a pledge to the state each morning, with no exceptions. A student refuses for nonreligious reasons. Protected?
- Barnette rested on freedom of speech, not religion.
- So any student, religious or not, may decline to recite.
Answer: Yes; under Barnette, the state may not compel the pledge.
Worked example: A membership list
A state demands that an advocacy group give it the names and addresses of all its members, with no specific need. The group says members fear reprisals. Which case?
- Compelled disclosure of members burdens association.
- NAACP v. Alabama (1958) protected the group's lists.
Answer: NAACP v. Alabama ex rel. Patterson.
Common mistake
Thinking Barnette rested on religious freedom. Though the families were Jehovah's Witnesses, the Court rested on freedom of speech: "no official, high or petty, can prescribe what shall be orthodox." That is why it protects nonreligious objectors too.