How One Religious Group Shaped Free Speech Jurisprudence in the Early 20th Century
“Seldom, if ever, in the past, has one individual or group been able to shape the course, over a period of time, of any phase of our vast body of constitutional law. But it can happen, and it has happened here. The group is Jehovah’s Witnesses.”
University of Pennsylvania Law Professor John Mulder penned these words in 1942 to describe the increasing precedent the marginalized group helped establish in the preceding decade. From 1938 to 1946, the Supreme Court heard twenty-three First Amendment cases involving the 30,000-member denomination. These frequent appearances and their lasting impacts led Justice Harlan Fiske Stone to quip that the Jehovah’s Witnesses “ought to have an endowment in view of the aid they give in solving the legal problems of civil liberties.”
A relatively new sect, Jehovah’s Witnesses are millennialists who believe the world is coming to an end. Members believe it is their duty to evangelize and convert as many as possible before Armageddon, and they do so zealously. In living out their Truth, they have suffered extreme persecution across the United States. Animosity has stemmed in part from their unique strategy of descending on towns proselytizing door to door and distributing literature, some of which condemns Catholics, Protestants, and Jews. Additionally, their brand of Christianity does not look like more traditional branches: they have no churches, they have no clergy, and they have no creed other than the Bible.
The Turning Point
Another unpopular aspect of the faith, the refusal to pledge allegiance to anything other than God, put the Witnesses before the Supreme Court on multiple occasions. In the 1940 case of Minersville School District v. Gobitis, the Supreme Court ruled regulations mandating students to participate in the pledge of allegiance constitutional. Writing for the majority, Justice Felix Frankfurter opined that the pledge served to promote national cohesion, “an interest inferior to none in the hierarchy of legal values.”
The Gobitis decision came in the midst of its author Justice Frankfurter’s plea for national unity and the United States’ entry to World War II. The Austrian immigrant knew well the severity of the Nazi threat. The justice secured the release of his of his 82-year-old uncle from a Nazi prison, took in the children of a British former student, and helped Roosevelt prepare war mobilization speeches. It was personal to him. He believed in public schools’ roles in promoting unity and — through his own experience as an immigrant — assimilation.
Yet, the Gobitis decision coupled with the war hysteria had intense consequences for the already unpopular religious sect. To some, the Court’s decision was interpreted as validation of the Jehovah’s Witnesses’ seditious behavior. A qualitative report published by the ACLU in 1941 showed that while the group had faced animus and discrimination for years, it reached new heights in 1940, coinciding with the Gobitis decision. That year alone, Department of Justice filings showed 335 separate instances of violence targeting nearly 1,500 Witnesses. Law enforcement and vigilante citizens alike took matters into their own hands, leaving followers tarred and feathered, hanged, shot, maimed, and even castrated.
Other Cases: Wins and Losses
The correlation between the timing of the Gobitis decision and the increased persecution of Jehovah’s Witnesses did not escape the Court. The extrajudicial actions, coupled with the Court’s composition change, led the court to overturn its previous decision just three years later on Flag Day in West Virginia Board of Education v. Barnette. In an oft-quoted opinion, Justice Robert H. Jackson opined that “[i]f there is any star fixed in our constitutional constellation, it is that no official, high or petty, can prescribe that 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.”
The Jehovah’s Witnesses took part in several other landmark decisions in the early 1940s. In some, they won big. In Cantwell v. Connecticut, Witnesses won the right to preach publicly without a permit, marking the first time the Court incorporated the First Amendment freedom of religion rights to the states through the due process clause of the Fourteenth Amendment. Yet in other cases, they lost. In another well-known case, Chaplinsky v. New Hampshire, a Jehovah’s Witness found himself in front of the Supreme Court after violating a state law by calling a City Marshal “a God damned racketeer” and “a damned Fascist.” The case ended with the Court acting in a rare move, limiting the protection of the First Amendment by carving out a category of unprotected speech: fighting words.
Looking back on litigation, Jehovah’s Witnesses’ General Counsel Hayden C. Covington observed that if they had not fought for their civil liberties, the precedent set would be a giant First Amendment obstacle. However, that’s not how the story ends for the unlikely champions of the First Amendment. As Covington put it, “[o]ur way of worship has been written into the law of the land of the United States and other countries because of our persistence in appealing from adverse decisions.”
About the author: Austin Vining is a graduate research fellow with the Marion B. Brechner First Amendment Project and a JD/Ph.D. student at the University of Florida.
Featured image: Jehovah’s Witnesses fighting a group of irate townsmen in a solid line against the back-alley door at their convention hall in 1943. Courtesy Klamath Falls (Ore.) Herald (Permission on file with author.)
 John E. Mulder & Marvin Comisky, Jehovah’s Witnesses Mold Constitutional Law, 2 Bill Rts. Rev. 262, 262 (1942).
 See Paul Keith Conkin, Am. Originals: Homemade Varieties of Christianity 154 (1997) (noting there were “about 30,000 active Witnesses or publishers in the United States” in January 1942).
 David Post, Convicted Sex Offenders, Jehovah’s Witnesses, and the First Amendment, Wash. Post Blogs (Nov. 19, 2014, 3:22 PM).
 Shawn Frances Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution 186 (Univ. Press of Kan. 2000) (1966).
 See Patrick J. Flynn, “Writing Their Faith into the Laws of the Land:” Jehovah’s Witnesses and the Supreme Court’s Battle for the Meaning of the Free Exercise Clause, 1939–1945 10 Tex. J. on Civ. Liberties & Civ. Rts. 1, 3 (2004) (noting the Jehovah’s Witnesses were formed in the latter half of the 19th century).
 Am. Civil Liberties Union, The Persecution of Jehovah’s Witnesses 5 (1941).
 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), Jones v. Opelika 316 U.S. 584 (1942), and West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943).
 Gobitis, 310 U.S. at 599–600.
 Id. at 595.
 Brad Snyder, Frankfurter and Popular Constitution, 47 U.C. Davis L. Rev. 343, 373 (2013).
 Id. at 373-74.
 Id. at 374.
 Am. Civil Liberties Union, supra note 8 at 23.
 Id. at 3.
 See Marley Cole, Jehovah’s Witnesses: The New World Society 111 (1955) (quoting Jehovah’s Witnesses General Counsel Hayden Covington).
 Leigh Hunt Greenhaw & Michael H. Koby, Constitutional Conversations and New Religious Movements: A Comparative Case Study, 38 Vand. J. Transnat’l L. 615, 648 (2005).
 West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
 Cantwell v. Connecticut, 310 U.S. 296, 303–11 (1940).
 Greenhaw & Koby, supra note 23, at 628.
 Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942).
 Id. at 572–74.
 Jehovah’s Witnesses, Proclaimers of God’s Kingdom 638 (eds., 1984).