Amendment 1 — Flag Salutes And Other Compelled Speech

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

One question the Supreme Court has considered is whether the government may compel a person to declare or affirm publicly a personal belief. In Minersville School District v. Gobitis,[1](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn1amd1 " 310 U.S. 586 (1940). ") the Supreme Court had upheld the power of Pennsylvania to expel from its schools children who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. The Court explained that “[c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn2amd1 " 310 U.S. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of “these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” Id. at 601. ") But three years later, in West Virginia State Bd. of Educ. v. Barnette,[3](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn3amd1 " 319 U.S. 624 (1943). ") a 6-3 majority of the Court overturned Gobitis.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn4amd1 " Justice Felix Frankfurter dissented at some length, denying that the First Amendment authorized the Court “to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.” 319 U.S. at 646, 647. Justices Roberts and Stanley Reed simply noted their continued adherence to Gobitis. Id. at 642. ") Focusing on the free speech arguments rather than protections for religious exercise, the Court said that the state policy constituted “a compulsion of students to declare a belief,” requiring “the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn5amd1 " 319 U.S. at 631, 633. ") The Court ruled that the power of a state to follow a policy that “requires affirmation of a belief and an attitude of mind,” however, is limited by the First Amendment , which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual “creates a clear and present danger that would justify an effort even to muffle expression.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn6amd1 " Id. at 633, 634. See also Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 9 (U.S. June 2018) (noting that compelled speech imposes a distinct harm by “forcing free and independent individuals to endorse ideas they find objectionable” ). ")

The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard,[7](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn7amd1 " 430 U.S. 705 (1977). ") which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto “Live Free or Die.” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn8amd1 " The state had prosecuted vehicle owners who covered the motto on their vehicle’s license plate. ") Acting on the complaint of a motorist who again raised religious objections to this statement, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment , at least where the speech was not likely to be identified with the owner and the owner could effectively disavow any connection with the speaker’s message.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn9amd1 " See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 85–88 (1980) (upholding a state requirement that privately owned shopping centers permit others to engage in speech or petitioning on their property). ")

The Supreme Court has also held other governmental efforts to compel speech to violate the First Amendment ; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,[10](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn10amd1 " Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who has retained eight-five percent of gross receipts from donors, but falsely represented that “a significant amount of each dollar donated would be paid over to” a charitable organization, could be sued for fraud. ") a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records,[11](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn11amd1 " Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1 (1986), a Court plurality held that a state could not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. ") an Ohio statute that prohibited the distribution of anonymous campaign literature,[12](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn12amd1 " McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995). ") a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message—in this case support for gay rights—that the organizers did not wish to convey,[13](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn13amd1 " Hurley v. Irish-Am. Gay Grp., 515 U.S. 557 (1995). ") and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn14amd1 " See Nat’l Inst. of Family and Life Advocs. v. Becerra, 585 U.S. ___, No. 16-1140, slip op. at 7 (U.S. June 2018). Specifically, in National Institute of Family and Life Advocates v. Becerra, the Court reviewed a California law that, in relevant part, required medically licensed crisis pregnancy centers to notify women that the State of California provided free or low-cost services, including abortion. Id. at 2–4 (describing the California law). For the Court, “[b]y requiring [licensed clinics] to inform women how they can obtain state-subsidized abortions—at the same time [those clinics] try to dissuade women from choosing that option,” the California law “plainly alters the content” of the clinics’ speech, subjecting the law to heightened scrutiny. Id. at 7 (internal citations and quotations omitted). ") The Court also struck down a federal funding condition that required funding recipients to adopt a policy explicitly opposing sex trafficking.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn15amd1 " Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 221 (2013). For additional discussion of this case, see . ")

The Court continued its reliance on Barnette in 303 Creative LLC v. Elenis a decision prohibiting the application of a state nondiscrimination law to a website designer who wished to refuse to design websites for same sex weddings.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn16amd1 " No. 21-476 (U.S. June 30, 2023). ") The Colorado Anti-Discrimination Act prohibits “public accommodations” from denying services to individuals based on sexual orientation and other characteristics.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn17amd1 " Id. at 3 (citing Colo. Rev. Stat. § 24-34-601(1) (2022)). ") A website designer who wanted to make wedding websites only for marriages “between one man and one woman” brought a pre-enforcement lawsuit, seeking an injunction to prevent the state from applying this law to punish her for discriminating against same-sex marriages.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn18amd1 " Id. at 2–3. ") The Supreme Court held that wedding websites are “pure speech” protected by the First Amendment and that enforcement of Colorado’s law requiring creation of wedding websites for same sex marriages would impermissibly compel speech.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn19amd1 " Id. at 9–11. ")

The principle of Barnette, however, does not extend so far as to bar a government from requiring employees or certain persons seeking professional licensing or other benefits to swear an oath that they will uphold and defend the Constitution.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/flag-salutes-and-other-compelled-speech#fn20amd1 " Cole v. Richardson, <a href="/supremecourt/text/405/676" aria-