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Nothing New Under the First Amendment Sun
When We Litigate Free Speech, We Litigate Ancient Questions Of What It Means To Be Human
Ken White
September 04, 2020
Recently someone asked me why I’m so fascinated with First Amendment litigation, and I’ve been thinking about it.
Rhetorical, artistic, and religious expression are fundamental to how we define ourselves. The First Amendment governs how much our fellow citizens, through the state, can restrict that expression. It protects our ability to determine who we are.
It also tends to explore absolutely timeless human dilemmas. Consider this passage,
Your edict, King, was strong,
But all your strength is weakness itself against
The immortal unrecorded laws of God.
They are not merely now: they were, and shall be,
Operative for ever, beyond man utterly.
That’s Antigone, telling King Creon of Thebes why she buried her brother in obedience to the law of the gods and in defiance of the law of the state. Sophocles wrote it almost 2500 years ago.
Now consider this passage:
I do not salute the flag because I have promised to do the will of God. That means that I must not worship anything out of harmony with God’s law.
That’s 12-year-old Billy Gobitis, writing to the school board of Minersville, Pennsylvania in November 1935, about 2400 years after Sophocles wrote about Antigone. You can see the letter here. I find it incredibly moving. Billy Gobitis’ words moved neither the school board nor the United States Supreme Court, which ruled against him in 1940, holding, like Creon, that the law of the state is superior to an individual’s belief in the law of God. That decision was a factor in a surge of wartime persecution and violence against Jehova’s Witnesses like Billy Gobitis. The Supreme Court reversed course just three years later in West Virginia State Board of Education v. Barnette. Justice Jackson answered the ancient dilemma differently in some of the most enduring words of First Amendment jurisprudence:
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.
[By the way, the now-mostly-forgotten persecution of Jehova’s Witnesses plays a prominent role in other parts of First Amendment history as well — for instance, the infamous “fighting words” doctrine is rooted in state animus against this religious minority. The first episode of my podcast “Make No Law” describes it in detail, along with some of the history and context of the injustices inflicted on the Witnesses.]
When must the will of the individual yield to the common good? What happens when conscience conflicts with law? Who knows the will of God? Art and philosophy have explored these questions for millennia. First Amendment law continues to explore them.
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