West Virginia State Board of Education v.
Barnette (1943)
Justice Jackson's majority opinion:
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.
Justice Frankfurter's dissenting opinion:
One who belongs to the most vilified and persecuted minority in
history is not likely to be insensible to the freedoms guaranteed
by our Constitution. Were my purely personal attitude relevant, I
should wholeheartedly associate myself with the general
libertarian views in the Court's opinion, representing, as they
do, the thought and action of a lifetime. But, as judges, we are
neither Jew nor Gentile, neither Catholic nor agnostic. We owe
equal attachment to the Constitution, and are equally bound by our
judicial obligations whether we derive our citizenship from the
earliest or the latest immigrants to these shores. As a member of
this Court, I am not justified in writing my private notions of
policy into the Constitution, no matter how deeply I may cherish
them or how mischievous I may deem their disregard.
Wooley v. Maynard (1977)
Chief Justice Burger's majority opinion:
Here, as in Barnette, we are faced with a state measure
which forces an individual, as part of his daily life—indeed
constantly while his automobile is in public view—to be an
instrument for fostering public adherence to an ideological point
of view he finds unacceptable.
Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston (1995)
The protected expression that inheres in a parade is not limited
to its banners and songs, however, for the Constitution looks
beyond written or spoken words as mediums of expression. Noting
that "[s]ymbolism is a primitive but effective way of
communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.
S. 624, 632 (1943), our cases have recognized that the First
Amendment shields such acts as saluting a flag (and refusing to do
so), wearing an armband to protest a war, displaying a red flag,
and even "[m]arching, walking or parading" in uniforms displaying
the swastika. As some of these examples show, a narrow, succinctly
articulable message is not a condition of constitutional
protection, which if confined to expressions conveying a
"particularized message," would never reach the unquestionably
shielded painting of Jackson Pollock, music of Arnold Schoenberg,
or Jabberwocky verse of Lewis Carroll. Not many marches, then, are
beyond the realm of expressive parades, and the South Boston
celebration is not one of them.
"Since all speech inherently involves choices of what to say and
what to leave unsaid," one important manifestation of the
principle of free speech is that one who chooses to speak may also
decide "what not to say" . . . . Petitioners' claim to the benefit
of this principle of autonomy to control one's own speech is as
sound as the South Boston parade is expressive. Rather like a
composer, the Council selects the expressive units of the parade
from potential participants, and though the score may not produce
a particularized message, each contingent's expression in the
Council's eyes comports with what merits celebration on that day.
Even if this view gives the Council credit for a more considered
judgment than it actively made, the Council clearly decided to
exclude a message it did not like from the communication it chose
to make, and that is enough to invoke its right as a private
speaker to shape its expression by speaking on one subject while
remaining silent on another. The message it disfavored is not
difficult to identify. Although GLIB's point (like the Council's)
is not wholly articulate, a contingent marching behind the
organization's banner would at least bear witness to the fact that
some Irish are gay, lesbian, or bisexual, and the presence of the
organized marchers would suggest their view that people of their
sexual orientations have as much claim to unqualified social
acceptance as heterosexuals and indeed as members of parade units
organized around other identifying characteristics. The parade's
organizers may not believe these facts about Irish sexuality to be
so, or they may object to unqualified social acceptance of gays
and lesbians or have some other reason for wishing to keep GLIB's
message out of the parade. But whatever the reason, it boils down
to the choice of a speaker not to propound a particular point of
view, and that choice is presumed to lie beyond the government's
power to control.
Rumsfeld v. Forum for Academic and Institutional Rights, Inc
(FAIR) (2006)
A law school’s recruiting services lack the expressive quality of
a parade, a newsletter, or the editorial page of a newspaper; its
accommodation of a military recruiter’s message is not compelled
speech because the accommodation does not sufficiently interfere
with any message of the school.
Janus v. American Federation of State, County and
Municipal Employees, Council 31
When speech is compelled, however, additional damage is done. In
that situation, individuals are coerced into betraying their
convictions. Forcing free and independent individuals to endorse
ideas they find objectionable is always demeaning, and for this
reason, one of our landmark free speech cases said that a law
commanding “involuntary affirmation” of objected-to beliefs would
require “even more immediate and urgent grounds” than a law
demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178.
Compelling a person to subsidize the speech of other private
speakers raises similar First Amendment concerns. As Jefferson
famously put it, “to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves and
abhor[s] is sinful and tyrannical.” A Bill for Establishing
Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd
ed. 1950). We have therefore recognized that a “ ‘significant
impingement on First Amendment rights' ” occurs when public
employees are required to provide financial support for a union
that “takes many positions during collective bargaining that have
powerful political and civic consequences.”