West Virginia State Board of Education v. Barnette

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), decided three years later, the Court recognized that the flag salute was symbolic speech, a form of expression requiring an "affirmation of a belief and an attitude of mind", 319 U.S. at 632-633, 63 S.Ct. at 1083, and that it was therefore subject to the First Amendment. The Court rejected the Gobitis premise that the government could require an individual to express respect toward the flag in the interest of national unity. It adopted precisely the opposite premise. The Court held that the First Amendment guaranteed the individual's right "to be intellectually and spiritually diverse or even contrary." Id. at 641, 63 S.Ct. at 1187. The "freedom to differ," the Court said, "is not limited to things that do not matter much"; it includes "the right to differ as to things that touch the heart of the existing order." Id. at 641-642, 63 S.Ct. at 1187. Under the First Amendment, the Court concluded, "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." Id. at 642, 63 S.Ct. at 1187.