Enforcing Patriotism, Suppressing Dissent: America’s Neglected Free Speech Crisis

Picture this. Students in schools paid for with tax dollars are ordered to stand as a sign of respect for the federal government. If they sit or kneel, they face punishment. Sometimes, teachers respond to a student who refuses to stand by haranguing her until the student reacts angrily, at which point she is arrested. This might sound like something out of China, North Korea or Russia, but it describes some American public schools and universities. For some students in America’s public education system, standing for the Pledge of Allegiance or National Anthem is not an option. As the Hill explains, “two states, Florida and Texas, have seen their pledge statutes tested in court, since they require permission from a parent or guardian for a student to decline to take part in the pledge.” Interestingly, they do not require permission to stand for the pledge.

In 2017–18, Texas was embroiled in a lawsuit, after Houston public school student India Landry remained seated during the pledge and was briefly expelled. The Texas state government jumped in to defend the law. According to Texas Attorney General Ken Paxton, “requiring the pledge to be recited at the start of every school day has the laudable result of fostering respect for our flag and a patriotic love of our country.” Free speech is apparently not a priority for the Texas Attorney General. The support of the state government for this kind of censorship shows that this is a systemic problem, not simply a matter of a few bad individual teachers or principals. Things in Florida look little better. About a decade ago, the US Court of Appeals ruled in favor of Florida’s law on the grounds that “We conclude that the state’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.” Florida’s interest in “protecting the rights of parents” only applies to speech the state government dislikes, since there is no similar requirement to get parental permission before standing for the pledge. It is not the proper role of government to assist (or stand in for) parents in arbitrarily censoring children’s free expression.

Earlier this year, a black sixth grader in a Lakeland, Florida public school refused to stand during the Pledge of Allegiance due to his frustration with the treatment of non-white Americans. According to her own affidavit, the child’s teacher berated him, suggesting he “go back” to where he came from if he disliked the way things were in America. When he refused to knuckle under in response to this racist, authoritarian behavior, she reported him, and the administrative dean and a police officer entered the classroom to confront the student. Understandably angry at the violation of his free speech rights, the student yelled at the officials, refused to leave the room, and was arrested and charged. The local police claimed that, “This arrest was based on the student’s choice to disrupt the classroom, make threats and resist the officer’s efforts to leave the classroom.” This misses the point. If the teacher had not felt entitled to bully her student for not following her vision of patriotism or if school officials had told her she was out of line, the class would not have been disrupted, and things would never have escalated. Both the teacher and the cop ought to find jobs that do not involve working for the government or having authority over children.

In all too many cases, public educational institutions are equally intolerant when students do not stand for the national anthem. In Louisiana, Bossier Parish’s superintendent of schools, Scott Smith, warned student athletes in 2017 that kneeling or sitting during the anthem would have disciplinary consequences. According to Smith, “It is a choice for students to participate in extracurricular activities, not a right, and we at Bossier schools feel strongly that our teams and organizations should stand in unity to honor our nation’s military and veterans.” In Shreveport, principal Waylon Bates of Parkway High School warned that athletes who failed to stand for the national anthem could be removed from their teams. After a Native-American football player from California’s San Pasqual High School kneeled during the national anthem at a game, he was subjected to racial slurs, and a cheerleader for his team was sprayed with a water bottle. The San Pasqual Valley Unified School District responded by upholding this heckler’s veto and requiring coaches and students to stand with their hats and helmets off during the National Anthem. Thankfully, a federal court overruled the policy. In Collier County, Florida, in 2016 public schools attempted to extend the parental permission rule to students who kneel during the anthem.

The pledge and the anthem are homilies to the state. Both refer to the official flag. The pledge refers to “the republic”—our system of government—and to the “liberty and justice” that government supposedly recognizes. The anthem refers to America as “the land of the free”—ironically, since slavery enjoyed government support at the time it was written. Francis Scott Key, its author, was a state prosecutor who targeted abolitionists and slaves and attempted to censor radical antislavery literature.

The danger to free speech posed by the policies detailed above is clear. Government schools are forcing students to take part in a political ritual. Those who believe that such policies are necessary to prevent students from being disruptive ought to ponder precisely how sitting or kneeling quietly is disruptive. It is the people incapable of reacting in a calm, reasonable manner who are being disruptive. The claim that forcing people to stand is not a free speech violation, because they are not actually forced to recite any words is unpersuasive. If only spoken and written words are protected under freedom of speech and expression, the government would have the right to ban people from wearing religious symbols, making religious or patriotic art, displaying the American flag or reciting the pledge and anthem themselves.

These policies seem to violate the Supreme Court’s 1943 West Virginia State Board of Education v. Barnette ruling that students cannot be forced to recite the pledge or salute the flag. However, there are two reasons why these policies have been able to stand.  First, the court never specifically addresses whether students can be forced to stand. It is possible that the court felt that this was implicit in the judgment. It is also possible that they considered it beyond the scope of the case at hand. Second, the Barnette case dealt with Jehovah’s Witnesses, who felt that they had been forced to violate their religious teachings. By requiring parental permission for students not to stand for the pledge or anthem, school officials may feel that they have gotten around Barnette. However, compelling children to participate in patriotic and/or pro-government rituals is a clear violation of the spirit of Barnette. Even the current conservative Supreme Court might rule against this kind of forced patriotism if a case such as India Landry’s ever makes it onto their docket. In the meantime, however, these policies are in place. And, despite the laudable resistance offered by some students and parents and by groups such as the ACLU, they are neglected by much of the public in favor of cases involving censorship of conservative or religious expression. Religious and conservative Americans should have their free speech rights upheld. But ignoring censorship that does not fit a particular narrative betrays a lack of concern for the principle of free speech.

In 2017, the University of Helsinki noted the continuity between the hyper-patriotic indoctrination of children by the Soviet Union and the current emphasis on “civic education, grounded in strong patriotism” under Putin. In Russia, encouraging children to think for themselves is less important than promoting loyalty to the state. Russia was essentially a totalitarian state under both the tsars and the communists and remains one to the present day. For now, the US has far greater freedom of speech. But we must consider the parallels between some of our attempts to enforce blind patriotism through coercion and those of much more repressive countries.