Minersville School District v. Gobitis

The Supreme Court rules you have to say the pledge in school…and three years later, takes it back. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this episode ad-free and listen to Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support. 5 to 4 is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:04Speaker 00

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about Minersville v. Gobitis, a 1940 case about two children who were expelled from their public school for refusing to salute the flag and recite the Pledge of Allegiance. As Jehovah's Witnesses, the students refused on the grounds that the pledge was a form of idolatry and was therefore against their religion. The Supreme Court sided with the school. However, just three years later, in a different case, the Supreme Court reversed their decision. A rare instance of the court quickly acknowledging and correcting a mistake. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 0:54Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have tried to kill our civil liberties, like the Philadelphia Eagles medical staff trying to kill Jalen Hurts. I'm Peter.

• 1:05Speaker 02

  Whoa.

• 1:06Peter Shamshiri?

  I'm here with Rhiannon.

• 1:07Speaker 02

  Hey, everybody.

• 1:09Peter Shamshiri?

  And Michael.

• 1:10Michael Liroff?

  It's pretty shocking. I mean, you know, I'm not so TikTok-brained to think that they actually were affirmatively trying to kill him.

• 1:17Peter Shamshiri?

  Let's put a pin in that. We'll talk about our producers' theories in a second. But I guess the story is that Jalen Hurts, Philadelphia Eagles quarterback, out for the season with blood clotting in his lungs, and it appears that the Eagles' medical staff were like aware of this and let him play, which is insanely dangerous, even by professional football standards.

• 1:41Michael Liroff?

  Yeah, there's been a lot of conflicting reporting about what was known when and how serious it was. Was it just a superficial blood clot when they cleared him to play? Or had it spread to his lungs? Was it London doctors and not team doctors? Was he asked to stay up? Or did he sleep? Like, it's just been a lot of conflicting stuff, and I'm not sure what's true, other than the fact that they knew he had some blood clots. He played, then he flew home on a transatlantic flight, and then had a bunch of blood clots including in his lungs, and his season is over and possibly...

• 2:19Peter Shamshiri?

  His career.

• 2:19Michael Liroff?

  Seeing how severe blood clots have affected other athletes, possibly his career.

• 2:23Peter Shamshiri?

  Yeah.

• 2:23Speaker 02

  Yeah, Ali has a theory, though.

• 2:25Peter Shamshiri?

  Our producer made us aware that she's been watching TikTok videos saying that the Eagles' medical staff is trying to kill him.

• 2:33Michael Liroff?

  Right.

• 2:33Peter Shamshiri?

  Which has me relatively concerned about what she's consuming.

• 2:37Speaker 02

  Yeah.

• 2:38Peter Shamshiri?

  Because she is part of the team, at least in theory. And it's like, is it dragging us down that one of our team members is consuming insane theories on TikTok?

• 2:48Speaker 02

  Ali, I just want you to touch base and maybe touch grass, and then also maybe like, you know, some more normal things.

• 2:56Peter Shamshiri?

  Yeah, maybe just like, maybe like what to wear this fall? You know, what are people doing with their nails lately?

• 3:04Speaker 02

  Or like, what's going on at the Supreme Court?

• 3:05Peter Shamshiri?

  Yeah, maybe some Supreme Court stuff, you know?

• 3:08Michael Liroff?

  Yeah.

• 3:09Peter Shamshiri?

  She's also typed in the chat that she's doing this on the Five to Four account.

• 3:13Michael Liroff?

  Yes, and that it was the Large Hadron Collider.

• 3:17Speaker 02

  Amazing.

• 3:18Peter Shamshiri?

  Upsetting stuff, again. I don't have the authority to fire you, Ali.

• 3:25Speaker 02

  But no, it's on our minds.

• 3:26Peter Shamshiri?

  No, that it's on our minds. If it were up to me, it would be a discussion.

• 3:33Speaker 02

  We love Ali so much.

• 3:34Michael Liroff?

  Yeah, we love Ali.

• 3:35Peter Shamshiri?

  We love our insane producer, folks. Today's case, Minersville School District v. Gobitis, is a case from 1940 about students refusing to pledge allegiance to the flag. In the 1930s, a couple of schoolchildren refused to pledge allegiance to the flag because they are Jehovah's Witnesses. They believe that such a thing is tantamount to idolatry, which, as we discussed when prepping this case, obviously it is. Obviously, it is idolatry.

• 4:08Michael Liroff?

  Obviously correct.

• 4:08Peter Shamshiri?

  Yeah.

• 4:08Speaker 02

  That's accurate, yeah.

• 4:10Peter Shamshiri?

  Unfortunately, it was mandatory to pledge allegiance to the flag in this school district, so these kids got into some trouble. They get expelled. The penalty is expulsion. Their father sues, saying this is a violation of their First Amendment rights, their religious liberty, but the court, in an eight-to-one decision, disagreed, saying that this was the prerogative of the schools.

• 4:33Speaker 02

  Mm-hmm. Yeah, and eventually, you know, if you're listening to this and you say, wait, no, I do know First Amendment stuff, and haven't I heard that it is okay to refuse to stand for the Pledge of Allegiance? You are right. What's interesting about this case, guys, is that it gets overturned. And not just that it gets overturned, but it gets overturned really quickly. So I think what's like interesting, kind of striking about this case is bad decision, but really sort of like stark ramifications, almost immediate in the public, and the Supreme Court like reversing course very soon thereafter. So let's talk about, though, the background for this case Gobitis. Jehovah's Witnesses, sure, listeners know Jehovah's Witnesses are familiar, right?

• 5:16Speaker 02

  This is a religious sect whose adherents, sort of famously or infamously, depending on how you look at it, believe that an important part of practicing their faith is through proselytizing, pamphleting, door-knocking, all that kind of good stuff.

• 5:30Peter Shamshiri?

  Have you guys been hit by a witness door-to-door?

• 5:32Speaker 02

  Definitely. When I was a kid in Dallas suburbs, definitely, yeah.

• 5:36Peter Shamshiri?

  I remember a couple of nice ladies coming by, but I was like 15 in the height of my teenage atheist phase.

• 5:43Speaker 02

  Sure.

• 5:44Peter Shamshiri?

  And I remember them being like, do you believe in God? And I was like, not really. And they were like, well, look around. Do you think this all could have happened by accident? Isn't it just so complex and beautiful that it couldn't have happened by accident? And I was like, I think it's so complex and beautiful. It had to have happened on accident. And they were like, you could just see, they were like, ah, shit, this kid's a fucking... This kid's weird, right? This kid is annoying.

• 6:09Michael Liroff?

  Peter's like the guy in Heretic in this moment. Two religious girls come to his door, and he's like, can I invite you in for a chat?

• 6:18Peter Shamshiri?

  I'm actually here to ruin your afternoon. I've been debating this on the internet for several weeks, and now I'm here to bring it to you.

• 6:24Speaker 02

  Yeah, and y'all don't have experience in chat rooms, do you?

• 6:27Peter Shamshiri?

  I still remember their child calling for them from the car, like, Mom, stop talking to this kid.

• 6:34Speaker 04

  If there's no God, and we're just horny microscopic ants floating on a rock through space with no divine purpose and no hope to achieve eternal life, well, that's terrifying, too.

• 6:44Speaker 02

  When they came to my house, we were always kind of in a standstill. They would say, well, let me just give you the pamphlet or whatever. And I would say, like, as a Muslim, I can't throw away the religious literature of any other faith, so I'm not going to accept that. We were just kind of stare at each other for a little while.

• 7:02Speaker 02

  There's nothing more to really say or, you know, transact on here, so.

• 7:05Peter Shamshiri?

  Yeah.

• 7:07Speaker 02

  Okay, so everybody knows the witnesses, right? Other tenants of their faith include a strict ban on any form of idolatry, which they view as like celebrating nonreligious holidays, for example, or importantly, for this case, pledging allegiance to a nation, saluting a flag.

• 7:25Peter Shamshiri?

  And not just celebrating nonreligious holidays, but they believe that, for example, Christmas is tantamount to idol worship. They don't do Christmas, right?

• 7:32Speaker 02

  Yeah.

• 7:32Peter Shamshiri?

  Presumably, no Easter bunny as well.

• 7:35Michael Liroff?

  I mean, they are right. Christmas and Easter were pagan holidays first, right? So.

• 7:39Speaker 02

  Totally, totally.

• 7:40Peter Shamshiri?

  Also something I would have brought up at 15.

• 7:42Michael Liroff?

  I'm getting converted. The Jehovah's, they're the only ones who seem to know what's up.

• 7:46Speaker 02

  Right, you're convincing me, actually. Yeah, yeah. Okay, so that's who we're talking about in this case. That's who, you know, these children who are Jehovah's Witnesses get expelled from school, and this case goes up to the Supreme Court. But I think it's important to talk about some other like historical context that's happening at this time. In 1940, the United States has not officially entered World War II, but the war has been going on for a long time, and Americans are following the news. People are wary, they are afraid at this time of Nazi advancement in Europe, they're wondering about whether the United States is going to enter the war and when. And the sort of like public discourse or the public sentiment at the time, they're sort of already taking up a sense that the United States is at war, even before it's

• 8:31Speaker 02

  official. So of course, what do we know about Americans when they're at war? They're going to be on alert for traitors, for internal detractors, for spies. They're going to be doing patriotism litmus tests. They're calling fries "freedom fries." So when you layer this kind of sentiment on top of things here, you see how, at the time, Jehovah's Witnesses had been already facing mounting religious persecution and discrimination because Americans are looking for people who are different. And look at these guys, they're not saluting the flag. They say celebrating July 4th is sacrilege. They keep handing pamphlets to me, and I don't like it, and it's un-American.

• 9:12Speaker 02

  So at this time, with the war kind of context, towns across America are actually passing ordinances trying to prohibit Jehovah's Witnesses from distributing their pamphlets, their religious materials. They're attempting to regulate the witnesses' religious practices in public. They're requiring all of the sudden that Jehovah's Witnesses pay licensing fees for being out in public and proselytizing. So there's this sort of like discrimination that's imbued with this idea that Jehovah's Witnesses are un-American.

• 9:42Speaker 02

  So we'll talk in a minute about the additional layer of legal context here, which is also at this time, there's a very nascent budding movement in terms of an organized legal movement around starting to bring litigation in federal court on issues of individual liberties and individual rights. So this is starting to happen also at this time. But just getting into details of the case, Lillian Gobitis is 12 years old. Her brother, William Gobitis, was 10 at this time in 1940, when they were expelled from their public school in Minersville, Pennsylvania, because they conscientiously refused to salute the flag during the Pledge of Allegiance. And at the time, in this school district, the teachers, students, they were required by the school, the school district's rules to

• 10:27Speaker 02

  participate in saluting the flag and pledging allegiance every single morning. So as a result of these children's expulsion from school, Gobitis' family had to pay to put the children in private school. And so their father sues to recoup the cost of private school, but also, importantly, to ask that the public school district be enjoined from requiring participation in the Pledge of Allegiance as a condition that these kids go to public school. So that's how we go up to the Supreme Court, keeping in mind this context of like wartime sentiment, fervor against religious minorities, and Supreme Court justices trying to be sensitive to all of it at the same time.

• 11:11Peter Shamshiri?

  So the majority here is written by Felix Frankfurter, and it starts off talking about the value of symbols. He says, "The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life, which constitutes a civilization. We live by symbols. The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution."

• 11:53Speaker 02

  Someone pulled up the thesaurus.

• 11:55Michael Liroff?

  Can I take a moment to appreciate that Felix Frankfurter is actually a pretty good writer, because he makes it sound reasonable that he's like, "The foundation of civilization is saluting the flag."

• 12:04Peter Shamshiri?

  Right, right, right.

• 12:06Michael Liroff?

  Like, like he writes it, and you're like, hmm.

• 12:08Speaker 02

  You're like, wait a minute, I'm gonna read that sentence again.

• 12:11Michael Liroff?

  Yeah, it doesn't sound like the dumbest shit you've ever heard. It's like, I'm like, not persuaded, but I'm like, that's not stupid. And I think about it, I'm like, no, he literally said, "The foundation of civilization is saluting the flag."

• 12:21Peter Shamshiri?

  Right.

• 12:22Michael Liroff?

  Like.

• 12:22Speaker 02

  Yeah, yeah. He says, "We live by symbols." And you're like, yeah, okay.

• 12:26Peter Shamshiri?

  "The flag is a symbol of our liberty, which is why it must be mandatory in the real world to salute it."

• 12:32Speaker 02

  Yeah, exactly. Exactly. It's like, symbols have meaning.

• 12:35Peter Shamshiri?

  Yeah.

• 12:36Speaker 02

  So we all have to agree on it. Like.

• 12:37Peter Shamshiri?

  We all must sacrifice some liberty in order to preserve the sanctity of the symbol of our liberty.

• 12:47Michael Liroff?

  That is literally in the opinion. So it's not even not even exaggeration.

• 12:51Speaker 02

  And I'm gonna write a poem about it.

• 12:53Michael Liroff?

  He's like, "Your liberty won't be protected if we don't salute the flag, and you have to do it, like, or otherwise."

• 12:59Peter Shamshiri?

  Now, the rest of the opinion, really, the heart of the opinion is the idea that this is the prerogative of the school district. This is not the realm of the courts. This is something the school district should have the ability and the freedom to decide whether or not they want to mandate this. He's sort of like, if the school district wants to foster national unity by mandating the pledge, that's their business. That's not court business, right? He says, "To stigmatize legislative judgment in providing for this universal gesture of respect for the symbol of our national life in the setting of the common school, as a lawless inroad on that freedom of conscience which the Constitution protects, would amount to no less than the pronouncement

• 13:43Peter Shamshiri?

  of pedagogical and psychological dogma in a field where courts possess no market and certainly no controlling competence." He says legislative judgment, but he's really talking about the school district here. He speaks about them as one thing. When you say legislative judgment, it makes it sound like you're maybe talking about Congress, but you are talking about like, a school board, right? Like, the, the premise here.

• 14:06Michael Liroff?

  A single school board.

• 14:07Peter Shamshiri?

  And this is the real heart of the opinion. They say the courtroom is not the arena for debating matters of educational policy. So he's like, "We are not going to enforce a certain dogma."

• 14:18Speaker 02

  Yeah.

• 14:19Peter Shamshiri?

  That this is up to the schools. Very sort of familiar reasoning. This is something you see now a lot. When the courts just don't want to deal with something, they're like, "Oh, my God, this isn't court business."

• 14:31Speaker 02

  Yeah, this is so important, but I'm stupid.

• 14:35Peter Shamshiri?

  Look, if a school district decides that they want to mandate this in order to like, enhance the vibes of the nation, that's up to them. There is something sort of running through this. He says, "Judicial review itself, a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature, no less than to courts, is committed the guardianship of deeply cherished liberties." Basically, like, look, they are also looking out for liberties, and they can basically balance liberty and whatever other interests they're trying to advance without our intervention.

• 15:09Michael Liroff?

  Right.

• 15:09Speaker 02

  Yeah.

• 15:09Peter Shamshiri?

  Which, again, if you're talking about like, Congress, might make some sense, where it's sort of like, Congress made a determination that this is constitutional, we are the court, we're gonna defer to that. But you're talking about a school board. You're saying that you are, you are entrusting every individual school board across the country to

• 15:30Speaker 02

  Yeah.

• 15:30Peter Shamshiri?

  properly balance liberty interests against whatever else. The dumbest people in the world.

• 15:37Speaker 02

  To interpret the Constitution, and then, and for you to say, "And we don't have a role in doing that."

• 15:42Michael Liroff?

  Yeah.

• 15:42Peter Shamshiri?

  If you just like, put on the record, the median school board member from 1935, and just like, we're like, give us your thoughts, and then we like, read them to you, it would be like hearing a dog bark. Like, you would, you'd be like, whoa. Like, think, it would be.

• 16:00Speaker 02

  Like those videos from like, where it like, speeds up how somebody speaking medieval English.

• 16:06Peter Shamshiri?

  Right.

• 16:07Speaker 02

  In whatever year, and then what that sounds like in like, 1700, and then like, 1900, and then today. And you're like, whoa, it's definitely around 1960 that I start understanding.

• 16:17Peter Shamshiri?

  There, yeah, their thoughts would be closer to that of a medieval peasant than a learned person from right now. And, and the court is just like, look, who are we to say what the Constitution means, right? This school board has already decided.

• 16:33Michael Liroff?

  Right.

• 16:34Peter Shamshiri?

  The superintendent in Minersville, Pennsylvania, thinks that this is constitutional. And what, me, I'm just a guy on the Supreme Court.

• 16:42Speaker 02

  I'm just a poet.

• 16:43Michael Liroff?

  It also makes the whole thing about national unity and cohesion seem so stupid, because

• 16:48Speaker 02

  Exactly.

• 16:48Michael Liroff?

  Because it's one school's district. It's one school district. It's not the entire fucking country.

• 16:53Speaker 02

  Why frontload with the loftiest ideas?

• 16:56Michael Liroff?

  Yeah.

• 16:57Speaker 02

  You know, so meta?

• 16:58Peter Shamshiri?

  Yeah.

• 16:59Speaker 02

  And be like, this guy got it.

• 17:00Michael Liroff?

  Like, the neighboring school district might not even do this.

• 17:03Peter Shamshiri?

  Right, right.

• 17:05Michael Liroff?

  You know, like, they're like, hmm, this is how we reproduce society. And it's like, one school district at a time.

• 17:12Peter Shamshiri?

  Saying like, "We live by symbols" is so, is so interesting. Like, it's like Jungian psychology or something. He's like, "How can you separate the freedom that the flag represents from the flag itself?" It's like, what are you talking about, dude? This just, it's like obscene.

• 17:47Peter Shamshiri?

  Something that's important to understand is that the idea that the court is like, the backstop for our individual constitutional liberty, just wasn't built into our understanding of the constitutional system at this point in time.

• 18:03Michael Liroff?

  Right.

• 18:03Peter Shamshiri?

  To the degree that it is now. This is really the early stages of when you start to see like, litigation about individual rights. Before this, it had primarily been business. There's been a lot of scholarship about how like, a lot of individual rights, as we understand them in the mid-century, actually originated from like, business rights, right? The constitutional arguments were being brought by businesses first, and then individuals started building off of that. It's very hard to explain this with our sort of modern lens, but the court is kind of looking at this, and they're like, "I don't get it."

• 18:42Speaker 02

  Yeah.

• 18:42Peter Shamshiri?

  Some guy's got a problem with saying the pledge? Why, why is that my business?

• 18:47Michael Liroff?

  Right, right. You can see that sort of formalistically, too, when you compare the analysis in the majority opinion to that of the dissent. The dissent was by our woke king, Harlan Stone, writing solo. Also, the author of a big, important case from a few years prior, Carolene Products, which I will just give you guys a quick primer on, because he does reference it, and it is to the point Peter was just making. That was a case about a milk producer who made something called Phil's Milk. Don't love that name.

• 19:22Peter Shamshiri?

  RFK is drinking it right now.

• 19:24Speaker 02

  Don't want to know what it is.

• 19:24Michael Liroff?

  Well, I'm gonna tell you anyway, Aria.

• 19:28Michael Liroff?

  It's when they skim like, the milk fats off, and then fortify what's left over with some other sort of fat, like, in this case, I believe it was coconut oil. And

• 19:38Peter Shamshiri?

  Why?

• 19:41Michael Liroff?

  And Congress had, under its Interstate Commerce Clause powers, banned this. Congress had the same exact reaction as Peter, and was like, "No, you can't do this. You cannot do this."

• 19:54Peter Shamshiri?

  This is legally, this is too disgusting, what you're doing. This is you have, you, you have burned down the bridge between God and man.

• 20:09Peter Shamshiri?

  By the way, we're gonna get an email by someone who's like, I make this type of milk.

• 20:13Michael Liroff?

  Seriously. He sues, the law is upheld, the opinion is written by Harlan Stone, who says it's like a generally applicable economic law. He basically applies what you'd call now rational basis review, which is also what the majority applies here, which is as the generally applicable law. Is there an interest here that makes sense for the government to be pursuing that it can legitimately pursue? And does it? Okay, then we're fine.

• 20:37Peter Shamshiri?

  Yeah.

• 20:38Michael Liroff?

  Presumptively constitutional, like.

• 20:40Speaker 02

  Yeah.

• 20:40Michael Liroff?

  But he drops a footnote, a very famous footnote in this case. That's like, of course, if a law is targeted at like discreet and insular minorities, people who have been historically discriminated against, judges should take a more searching form of review. We should be a little suspicious about that and we should be careful and we should really think about whether the law is constitutional and we shouldn't presume it is essentially, which was essentially the birth of what's called strict scrutiny. You know, the backbone of eco-protection litigation. And so he's the author of the dissent here, just a few years later. And he's citing back to himself and he's being like, look, this is exactly what I was talking about.

• 21:20Speaker 02

  Yeah.

• 21:21Michael Liroff?

  The majority wants to say this is a generally applicable law, but let's be real. Like this is falling on discreet and insular minorities. It's infringing on their mind and their spirit and their religious liberties. He says, we've all seen this story before. He says, history teaches us that there have been but a few infringements of personal liberty by the state, which have not been justified as they are here in the name of righteousness and the public good. And few which have not been directed as they are now at politically helpless minorities. It's like, come on, this is what you say every fucking time when you come down hard on a religious minority, a rational minority, whatever. So we should be a little more careful. We shouldn't just presume it's constitutional. The government should have to say something more than national unity, bro.

• 22:06Peter Shamshiri?

  Right. He's like, this is how every law that's ever oppressed someone has been justified, right? Oh, it's in the interest of national unity or whatever.

• 22:15Michael Liroff?

  And yeah, it's a really good dissent and it feels really modern in a lot of ways. And it's thinking and it's approach. No, no complaints from me, short, sweet, to the point and correct.

• 22:27Peter Shamshiri?

  Yeah, we're still in the short opinion era. God bless it.

• 22:31Speaker 02

  Exactly. I'm grateful to do a throwback.

• 22:34Michael Liroff?

  The combination of it being short and like this, how stupid the reasoning is in the majority just reminded me though of like, just some like drunk guy at 2am being like, you don't want to salute the flag with everything that's going on right now in the world? You don't want to salute the flag, really? You know, and I was just like, dude, like you had three beers too many, go to sleep. That's what I want to say to Felix Frankfurter.

• 22:56Speaker 02

  Yeah, yeah. Sober friend being like, yeah, yeah, we'll talk about it tomorrow.

• 23:00Peter Shamshiri?

  And then your other friend on meth, who's like, we live through symbols, right? And you're like, fuck.

• 23:09Speaker 02

  Exactly. All right. So let's talk about Ben. This is an eight to one decision, like Michael just said. And there are almost immediate detrimental, harmful, dangerous effects of this decision. Large swaths of the public, especially across small town America, but across the entire country, interprets this decision as basically like legal affirmation that Jehovah's Witnesses are traitors to the United States. And across the country, there's this sweep of violent fervor and activity, violent actions against Jehovah's Witnesses. There were mob attacks that transpired in Illinois, Maryland, Maine, many, many states. Jehovah's Witnesses were fired from their jobs after this decision dropped.

• 23:54Speaker 02

  Children, of course, across the country were expelled from schools. And I watched a short interview with Joan Biskupic, who is a Supreme Court historian, where she said Jehovah's Witnesses were like, it wasn't just like, kind of like getting fired or like sort of ostracized professionally or in educational institutions. Jehovah's Witnesses were like attacked in their homes. They were pulled from their cars. There were instances where people were literally tarred and feathered. They were pushed to do humiliating things like kiss the flag or like drink castor oil. They were tied up and paraded through streets of small towns. This really was like a wave that swept across the country

• 24:36Speaker 02

  of violent animosity against Jehovah's Witnesses. A lot of people that were really shocked by this, government and public officials were really shocked by this. But there is a sense that like, the Supreme Court decision coming down is what sort of like a spark that accelerated pre-existing persecution and like discriminatory sentiment against Jehovah's Witnesses. And it was the Supreme Court decision here that like ignited this kind of like violent mob mentality against Jehovah's Witnesses in many, many places across the country. So the Supreme Court justices are looking at this and everybody is looking at this. The public is looking at this and realizing like,

• 25:20Michael Liroff?

  Yeah.

• 25:21Speaker 02

  Oh, our decision kind of did this.

• 25:24Michael Liroff?

  Sorry, tarred and feathered is crazy.

• 25:26Peter Shamshiri?

  Yeah.

• 25:27Michael Liroff?

  That's medieval shit. I mean, if you don't know, listener.

• 25:30Speaker 02

  Yeah.

• 25:30Michael Liroff?

  Tarring and feathering is like, it's, it's fucking torture. It's, it's like you're painted with hot tar. Like the shit that you see them like paving roads with, it's wildly, wildly painful and dangerous and is literal torture. So that's crazy. In the 1940s, people being tarred and feathered, like that's fucking nuts. Yeah.

• 25:50Speaker 02

  Yeah, yeah.

• 25:50Peter Shamshiri?

  So the Supreme Court is witnessing all of this. The public is witnessing all of this and the same basic case comes back to the court a couple of years later in 1943, West Virginia Board of Education v. Barnett. And the court completely flips. By this time, Stone, who wrote the dissent, is the chief justice. But I think it's between the majority and the concurrences here, five justices flip, which is wild in the span of three years. The majority says, one's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly may not be submitted to vote. Fundamental rights depend on the outcome of no elections. So.

• 26:34Speaker 02

  Yeah.

• 26:34Peter Shamshiri?

  A complete inversion of the reasoning in Gobitis. In Gobitis, they're like, look, yeah, school districts, legislatures, they have the right to make these decisions. Courts can't infringe upon that. We have no expertise. There in Barnett, total opposite. They're like, no legislature can encroach upon these rights that you have. That's built into the constitution. Looking back now, the idea that like someone's philosophy about the court's role vis a vis individual rights could completely flip on its head in the span of three years.

• 27:09Michael Liroff?

  Right.

• 27:09Peter Shamshiri?

  When you're a Supreme Court justice, crazy, crazy.

• 27:12Speaker 02

  Yeah, yeah. I think it's really worth zeroing in on and like why we did the case, right? Which was an overturned decision, the Gobitis decision is overturned. It's not the law of the land now. Of course, like I would like to say predominant constitutional understanding today is that you don't have to salute the flag and you don't have to stand for the Pledge of Allegiance. So it's important though, like this, this very acute example of the Supreme Court switching quickly. And, you know, I think it's like interesting to kind of consider why. One thing obviously is that they're struck, they're moved by this wave of violence that happens as a result of their decision. But you have to think that like psychologically, intellectually,

• 27:53Speaker 02

  that sort of forces them to reckon with the role of the court as a political actor. Even the logic in Gobitis about like, the court really doesn't have a role in this. These are political matters and we don't have anything to say about that. The calculations that the public.

• 28:08Michael Liroff?

  It's like an abdication.

• 28:09Speaker 02

  Quote unquote legislature makes on the balance of these liberties against government interests. That's for other people to do and other government institutions and the public to do. That's not for the court to do. Three years later, because they see like how intense, how violent, how disturbing the decision ended up being, like to switch this quickly is an admission, I think, that, oh yeah, we get it. We are political actors. We have political power in this system. And in order to sort of like right the wrong, literally, you know, like five justices are switching. And three of them explicitly say, we were wrong. I was wrong.

• 28:53Peter Shamshiri?

  Yeah.

• 28:53Speaker 02

  In joining the majority in Gobitis and I've changed my mind.

• 28:57Peter Shamshiri?

  Also, sort of obviously lurking behind this is what's happening in Europe. And the majority in Barnett does sort of hint at it, right? Like if you go down this path of ostracizing minorities in your midst, there's an obvious danger there. They don't talk about Hitler or Nazis or Europe specifically, but they're very clearly referencing it at a couple of points. The only other thing I'll say here is that you would sort of think that this leads to like, maybe not a rights revolution, but an understanding of individual rights, an understanding of the idea that the denial of certain rights to discreet minority groups can send you down a dangerous path.

• 29:39Peter Shamshiri?

  But the jurisprudence that immediately follows Barnett is like Kuramatsu. It's like all, all of the cases.

• 29:47Speaker 02

  Yeah.

• 29:47Peter Shamshiri?

  Saying that Japanese Americans can be treated as basically enemies in our midst. So you sort of have this like inchoate thought that the Supreme Court produces with Barnett in 1943, being like, huh, actually, yeah, maybe constitution protects minorities from mistreatment by the government. And that's what separates us.

• 30:14Speaker 02

  Yeah.

• 30:14Peter Shamshiri?

  And our beautiful constitution from what's happening over there in Europe. And then it's like, like immediately, they're like, that's said, the Japanese.

• 30:24Peter Shamshiri?

  It's crazy.

• 30:25Speaker 02

  Right.

• 30:25Michael Liroff?

  The treasonous Japanese. Yeah.

• 30:27Speaker 02

  You see this like, for example, in the dissent in Plessy v. Ferguson, which is decades before this, where Justice Harlan is like a sole dissenter and like saying the right things. Basically like the constitution, we should be understanding the constitution as, as colorblind. We should not be allowing discrimination, this kind of thing. And there's a whole, there's a whole like paragraph where he's like, but except if the person's Chinese.

• 30:49Peter Shamshiri?

  Yeah.

• 30:52Speaker 02

  So they're all, you know, everybody, everybody in the court has their, um, maybe some lofty ideals about some minorities that should be protected, but definitely racism for others.

• 31:04Peter Shamshiri?

  It's one of those things that's easy to say in certain contexts, right? And if you read like the modern conservatives and just isolated some of the lofty shit, they say, right? It might sound like they're great defenders of individual rights and liberties. Of course, where the rubber meets the road, they're not at all. It's easy in certain contexts to say, but then when the question is, hey, as part of our war effort, right? The greatest war the country's ever seen, can we imprison Japanese Americans? Or are you gonna tell us that we can't? Are you gonna tell the government that we can't fight this war the way we want to fight it?

• 31:40Speaker 02

  Yeah.

• 31:40Peter Shamshiri?

  They back off.

• 31:41Michael Liroff?

  More recently, you know, they overturned Korematsu in the case that upheld the Muslim ban.

• 31:46Peter Shamshiri?

  Right.

• 31:46Michael Liroff?

  And recapitulated Korematsu's logic. It's just, you read the old cases and it feels very familiar. It feels very, very familiar.

• 31:54Peter Shamshiri?

  Yeah. And there's one last thing I wanted to say about this, which is that I was thinking about Clarence Thomas's position on student rights. Clarence Thomas has expressly said that he doesn't believe that the First Amendment exists in the classroom.

• 32:07Speaker 02

  Yeah.

• 32:07Peter Shamshiri?

  He doesn't believe that students have speech rights. Now it's hard to know where he would stand in the religious context, but if you look at his statements and read him literally, it's kind of interesting because Clarence Thomas, if you're reading his shit literally, might actually agree with Gobitis. He might actually agree with the majority here that the court has no role and that the classrooms are like a setting where the Constitution doesn't really penetrate too much. And that's, I mean, that's pretty fucking wild to think that, you know, this, this case, which is like a symbol of like our pre-individual rights, understanding of the Constitution, might actually align relatively well with Clarence Thomas's perspective.

• 32:47Michael Liroff?

  As the resident Clarence Thomas reader.

• 32:50Speaker 02

  Hmm. I was just about to say, what do you think, Michael?

• 32:54Michael Liroff?

  I would say his attitude towards the classroom is almost the area where he's most explicitly fascist.

• 32:59Peter Shamshiri?

  Right.

• 33:00Speaker 02

  Yeah, it's extremely authoritarian. Yeah, like, children don't have rights. Yeah.

• 33:05Michael Liroff?

  And so I bet he would love mandatory pledges. Like, I bet he'd be all about it.

• 33:09Peter Shamshiri?

  I mean, what's the originalist perspective here? What was happening at the founding? Could you mandate the pledge at the founding? Of course.

• 33:15Michael Liroff?

  Yeah.

• 33:15Peter Shamshiri?

  Of course.

• 33:16Michael Liroff?

  Yeah.

• 33:17Peter Shamshiri?

  You read a case like this and you think like, oh, this is just an artifact of a, of a different era. Right. Where we didn't have this understanding of individual rights and it was different and then it's overturned and we've sort of moved on as a society. Uh, but there are members of the Supreme Court who would return to this in a heartbeat if the opportunity were there. I feel like some people are like, oh, they want to roll us back to 2014 or something. It's like, no, dude.

• 33:39Michael Liroff?

  It's like, no, dude.

• 33:40Peter Shamshiri?

  35, 1935.

• 33:42Speaker 02

  Yeah.

• 33:42Peter Shamshiri?

  Uh, perhaps earlier.

• 33:44Michael Liroff?

  At least, yeah.

• 33:45Speaker 02

  Yeah, and you know, we do have like several cases now, Supreme Court landmark decisions clarifying the First Amendment, especially around like mandates or the, you know, public expectations that you express patriotism in certain ways. You know, Scalia, Clarence Thomas's buddy, Scalia famously writes the opinion in Texas v. Johnson, which is like a late eighties case that says that flag burning can't be criminalized because flag burning constitutes symbolic speech that's protected by the First Amendment. So, you know, to go, you know, in 1940 and Gobitis, Frankfurt are talking about like, we live by symbols and symbols have to be upheld to, obviously over the course of a

• 34:30Speaker 02

  few more decades, understanding that speech can be symbolic as well, including, you know, lighting the flag on fire or sitting during patriotic

• 34:41Michael Liroff?

  Right.

• 34:41Speaker 02

  expressions of speech. And so, yeah, we, we now have symbolism understood in the First Amendment as something that constitutes speech and is therefore like one of these individual liberties that is protected in a lot of contexts. But we've talked over and over again how there is this body of jurisprudence about children and about the First Amendment in schools that makes exceptions on all of these rules.

• 35:08Michael Liroff?

  I personally stood and kept my hands in front of me, did not cover my heart and did not recite the pledge. That's what I did. And I remember there being a whole big thing about it, about how, not that I wasn't doing it, but there was a whole big thing about how you don't have to recite the pledge, but it would be nice if you could stand respectfully during it.

• 35:28Speaker 02

  We would say it every day in elementary school. And I swear I've talked on a podcast before that the state of Texas also has a pledge of allegiance. So we would do the US pledge of allegiance and then we would do the Texas pledge of allegiance.

• 35:43Peter Shamshiri?

  Let's hear it.

• 35:44Speaker 02

  Honor the Texas flag. I pledge allegiance to the Texas one and indivisible.

• 35:50Peter Shamshiri?

  Awful, dude. What? It doesn't even-

• 35:54Michael Liroff?

  It feels like a fragment, like not even a full sentence.

• 35:57Peter Shamshiri?

  Well, yeah, first of all, barely coherent as grammar.

• 36:00Speaker 02

  Yeah. Yeah.

• 36:02Peter Shamshiri?

  The indivisible thing makes sense in the context of like the union of states.

• 36:06Michael Liroff?

  Right.

• 36:07Peter Shamshiri?

  But you can't just throw that language in

• 36:08Speaker 02

  Yeah, right.

• 36:09Peter Shamshiri?

  To the Texas pledge. That doesn't make any sense. Okay, they've-

• 36:13Speaker 02

  Yeah. And then in middle school, in junior high, we didn't have to say the pledge until 9/11.

• 36:20Peter Shamshiri?

  Hmm.

• 36:21Speaker 02

  And then the school, we would do the pledge of allegiance on Fridays.

• 36:25Peter Shamshiri?

  Yeah, I'm not from like a particularly conservative area, but we did it daily. I think from K to 12. I probably wasn't doing it consistently just as a kid who's, you know, sat in the back of the room and goofed off with his friends. But as a matter of principle, once we hit like the Iraq war era and I became like, I was like more politically aware, I would just not say the pledge. Most teachers didn't give a shit, but I had one conservative teacher in, I think, my senior year of high school, who requested that I at least take my hat off. He's like, I know you don't have to, but I am asking you. And I was like, all right, you know, you're being polite about it. I'll take my hat off. He was like, look, I'm a veteran. And I was like, naval reserves, but okay.

• 37:11Peter Shamshiri?

  But, you know, that I remember, I remember that like other, that like people were watching and he was trying to do it politely. He was like trying to do it constitutionally. You could, you could see he was like, you do not have to do this. This is just requests. I was like, go on, you know?

• 37:26Speaker 02

  Yeah.

• 37:26Peter Shamshiri?

  I have all the power here. As like a little Miss-

• 37:31Michael Liroff?

  Peter the Magnanimous.

• 37:32Peter Shamshiri?

  Right. As a misbehaving bastard child, like this is like the, the best thing that can happen is like a teacher being like, I have a favor. I'm like, yes, go on.

• 37:43Peter Shamshiri?

  It was an everyday thing. I'm shocked that in Texas you were doing it once a week. That's crazy.

• 37:46Speaker 02

  Yeah. Yeah.

• 37:48Peter Shamshiri?

  Yeah, it is also very funny to only start doing it after 9/11.

• 37:51Michael Liroff?

  Yes, that, that's a good bit, actually.

• 37:53Peter Shamshiri?

  That is a great bit. Oh.

• 37:54Speaker 02

  Obvious.

• 37:56Peter Shamshiri?

  Oh, we got hit. Guys, we got hit. We gotta, uh-

• 38:00Michael Liroff?

  We gotta tighten up our, our, our national unity here.

• 38:03Peter Shamshiri?

  Yeah.

• 38:04Michael Liroff?

  We have been slacking on the national unity.

• 38:14Peter Shamshiri?

  All right, folks, next week, in honor of the Halloween season, a spooky episode, talk about a movie, The Devil's Advocate.

• 38:23Speaker 02

  Mm-hmm.

• 38:24Peter Shamshiri?

  The movie containing the most overlap between spookiness and law that we could think of.

• 38:30Speaker 02

  Yes.

• 38:30Peter Shamshiri?

  Okay?

• 38:33Speaker 02

  A movie that asks the question, what if high-powered lawyer devil?

• 38:40Peter Shamshiri?

  Hmm. You've seen high-powered lawyers very close to devil, but what if actual, what if actually he was devil?

• 38:51Peter Shamshiri?

  Just a, just a baby step, a baby step in that direction.

• 38:55Speaker 02

  Yeah.

• 38:55Peter Shamshiri?

  Small logical leap. Follow us on social media, at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. See you next week.

• 39:11Speaker 02

  Bye, y'all.

• 39:11Michael Liroff?

  Bye, everybody.

• 39:14Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

• 39:36Michael Liroff?

  I got a case of Gobitis. My wife, she's always telling me, you gotta go bite us.