The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First Amendment, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a state to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.
In 1942, the Board of Education adopted a resolution ordering that the salute to the flag become “a regular part of the program of activities in the public schools” that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag” and that the refusal to salute to the flag shall be regarded as “an act of insubordination,” resulting in the child’s expulsion and their parents being subjected to prosecution. The plaintiffs filed suit on behalf of public school children and teachers, specifically asking that a concession to be made to Jehovah’s Witnesses, whose religion prevents them from saluting to “images” such as the flag. They argued that the resolution was a denial of religious freedom, freedom of speech, and was also invalid under the due process and equal protection clauses of the Constitution.
Does a requirement of a local school board that all public school students and teachers salute the flag violate the First and Fourteenth Amendments?
There is no doubt that, in connection with the pledges, the flag salute is a form of utterance, as symbolism is an effective way of communicating ideas. The question that underlies the flag salute controversy is whether such a ceremony conveying matters of opinion and political attitude may be imposed upon an individual by official authority. In addition, the Fourteenth Amendment, as now applied to the states, protects the citizen against the state itself and all of its creatures – including the Board of Education. It is important to distinguish between the First and the Fourteenth Amendments in this analysis. While the test for the Fourteenth Amendment only requires that the legislation have a “rational basis,” freedoms of speech and of press, of assembly, and of worship, may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests that the State may lawfully protect. Here, no one disputes that national unity is an important end, but the problem is whether compulsion as here employed is a permissible means for its achievement. The Supreme Court concluded that the action of the local authorities in compelling the flag salute and pledge transcends the constitutional limitations on their power and invades the sphere of intellect and spirit which is the purpose of the First Amendment to reserve from all official control. Thus, the Board of Education’s resolution is unconstitutional on both grounds.