“Good Orthodoxy” and the Legacy Of Barnette

Abstract

This Essay applies the much-revered case of West Virginia Board of Education v. Barnette, which held that public school students may not be forced to stand and salute the American flag, to what I call the “good orthodoxy” context. In so doing, I hope to build a bridge between partisans on issues of free speech. In good orthodoxy cases, the individual claiming a right against compelled speech seeks to overturn a law or policy that was designed to remedy the harms committed against or to otherwise benefit historically marginalized groups. These good orthodoxy cases are both similar to and different from Barnette, where the Supreme Court held that the state cannot compel “unanimity of opinion” in support of patriotism or nationalism. Using examples such as public accommodations laws that compel production of expressive goods, union dues for public sector unions, and diversity statements at public law schools, I will demonstrate how new groups of dissenters are created in response to policies designed to protect historically marginalized or disadvantaged groups — instead of laws designed to compel respect for authority. Because of the differences between Barnette and the good orthodoxy cases, I argue that courts should be cautious before holding that the modern cases implicate pure speech, as opposed to expressive conduct or unprotected conduct. However, when pure speech is implicated, these laws or policies should be generally overturned as failing to satisfy strict scrutiny. Specifically, dignitary interests designed to protect individuals’ sense of acceptance in the community should generally not be considered sufficient to compel unanimity of opinion, and indeed, dignitary interests often indicate that what is being imposed is conformity to particular values.