The Constitution and the Ballpark
by Chris Edelson

One of my all-time favorite Supreme Court decisions is West Virginia State Board of Ed. v. Barnette, a 1943 ruling that it was unconstitutional for the West Virginia Board of Education to require public schoolchildren to salute the flag.  The case was brought when Jehovah’s Witnesses (who have initiated several important cases involving constitutional issues) objected to the Board’s order, which required schoolchildren to make a “stiff-arm” salute, raising their right hand, palm up, while reciting the Pledge of Allegiance. Several children had been expelled for refusing to salute the flag in school, and parents had been prosecuted for promoting delinquency. 

I have nothing against patriotism; what bothers me, and what bothered the Court in Barnette, is compelled patriotism, where the state requires a show of patriotism, and punishes those who do not want to comply.  It’s always seemed odd to me that some people think patriotism can be mandated.  Forced shows of patriotic feeling make me think of Orwell’s 1984.  It seems especially ironic for a country that subscribes to extremely worthy ideals of freedom to seek to compel patriotism from its citizens.

The Barnette Court ruled that West Virginia violated the childrens’ First Amendment free speech rights by trying to force them to utter a “credo of nationalism”; by compelling speech they did not believe in.  The Court’s opinion contains a number of profoundly worded statements, but the one that always gets me is this: “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.”  That pretty much sums up what it means to be free in America: the government cannot force us to believe what we do not believe, cannot force us to say what we do not want to say.  This is freedom of thought, freedom from Orwell’s thought police.

It’s always been odd to me that one of the places where you’re most likely to run into a required show of patriotism is at a baseball game.  I’ve been a baseball fan since I was about 7, and it’s always seemed odd to me that everyone is required to stand for the National Anthem.  I just don’t like compelled displays of patriotism, and I’ve noticed that people who don’t stand, or don’t take off their hats, sometimes get a talking to from an usher (it happened to a friend of mine a few weeks ago).

Now, that’s relatively minor stuff, and doesn’t implicate the First Amendment–by definition, only the government can violate the First Amendment, and most ballpark ushers either aren’t government employees or are off the clock.  Sometimes, however, constitutional issues do crop up at the ballpark.  Last August, a fan at a baseball game says he was kicked out of Yankee Stadium by a police officer because he left his seat to use the bathroom during the seventh inning playing of God Bless America.  The police officer, unlike the usher, is a government agent, so the fan had a basis for claiming that constitutional rights were at stake.  Today, it was announced that the lawsuit was settled, though the city did not admit liability.

I do not begrudge the fan his $10,001 recovery or his attorneys at the NY Civil Liberties Union the $12,000 they will receive in legal fees (based on the 9 years I spent as a litigator, I’m pretty confident that fee is not excessive based on the time the attorneys must have spent on the case).  However, it might have been nice to see an eloquent court opinion in this case, quoting the Barnette decision.

Recommend this article...

Did you enjoy this article? Please bookmark it onto:

Comments (1)

Write Comment

Please keep the topic of messages relevant to the subject of the article. Personal verbal attacks will be deleted. Please don't use comments to plug your web site. Such material will be removed. Just ensure to *Refresh* your browser for a new security code to be displayed prior to clicking on the 'Send' button. Keep in mind that the above process only applies if you simply entered the wrong security code.
Name:
E-mail
Homepage
Title:
BBCode:
Comment:
Code:*
	I wish to be contacted by email regarding additional comments

Powered by AkoComment Tweaked Special Edition v.1.4.4