The Jehovah’s Witnesses and the First Amendment

Last updated Dec. 6, 2024

U.S. Supreme Court Justice Harlan Fiske Stone once wrote that “Jehovah’s Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties.” 

The Witnesses frequently found themselves forged in numerous First Amendment controversies because their religious commitments often clashed with the laws and social expectations of society. Among their core beliefs is that the end of the world is near and so devote their lives to being disciples, preaching door to door in the spirit of the Biblical principle from the Book of Mark: “Go ye into all the world and preach the gospel to every creature.”

Between 1938 and 1943, the Jehovah’s Witnesses had an astonishing 30 cases before the High Court. They found themselves in the crosshairs of city officials nationwide for their commitment to spreading their religious faith on public streets and walking door to door, handing out pamphlets touting their faith in spite of ordinances that banned leafleting or other forms of solicitation. They faced physical violence after being branded traitors for refusing to salute the flag and recite the Pledge of Allegiance. 

The struggles of the Jehovah’s Witnesses led to numerous First Amendment victories — and a few defeats — but the result was a much stronger and richer jurisprudence. Among the most significant First Amendment victories were those that incorporated the Free Exercise Clause, established the no-compelled speech doctrine, and protected leafleting as a form of viable expression. Additionally, a notable defeat for the Jehovah’s Witnesses led to the creation of the fighting words exception to free speech.

Incorporation of the Free Exercise Clause 

Jehovah’s Witnesses Newton Cantwell and his sons, Jesse and Russell, sought to spread their religious faith in New Haven, Connecticut, by going door to door with religious books and a portable phonograph. Some homeowners complained, and the police eventually arrested the Cantwells for breach of the peace. But there was a problem for the police: Newton and his sons left when asked, did not use profanity, and otherwise did not incite any sort of violence. Their actions were entirely peaceful. 

After reviewing the facts of the case, the Supreme Court declared in Cantwell v. Connecticut (1940): 

We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. 

It is hard to overstate the significance of this passage, as here the Court extended the Free Exercise Clause of the First Amendment to state and local governments through the Due Process Clause of the Fourteenth Amendment. The Bill of Rights — which begins with the 45 words of the First Amendment — only applies to and limits the federal government. However, the Due Process Clause of the Fourteenth Amendment provides that no state shall deprive a person of “life, liberty or property without due process of law,” and the Supreme Court recognized that this provided a suitable vehicle to extend the freedoms enumerated in the Bill of Rights to state and local governments.

The Court also explained that the Cantwells did not breach the peace simply by spreading their religious beliefs. 

“In the realm of religious faith, and in that of political belief, sharp differences arise,” the Court wrote. “In both fields the tenets of one man may seem the rankest error to his neighbor.” The Constitution provides a shield for those who wish to speak their mind and express their personal beliefs. As the Court explained, “Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds.” 

The government cannot compel speech or belief 

Arguably, the most high-profile of the Jehovah’s Witnesses’ legal battles involved clashes with public school officials over their refusal to salute the flag and recite the Pledge of Allegiance. They believed that saluting the flag was akin to worshiping a graven image in direct violation of their faith. This put them at odds with many public school officials in different states, which had “patriotic” laws requiring public school students to salute the flag and recite the Pledge of Allegiance. 

The Supreme Court initially sided with school officials in Minersville School District v. Gobitis (1940), ruling 8-1 that a Pennsylvania flag salute law was constitutional. Writing for the majority, Justice Felix Frankfurter explained that “National unity is the basis of national security” and the “ultimate foundation of a free society is the binding tie of cohesive sentiment.” 

Only Justice Harlan Fiske Stone dissented, writing that “by this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” 

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The decision, which took place on the brink of America’s entry into World War II, had far-reaching consequences beyond just the expulsion of Billy and Lillian Gobitis for their refusal to recite the pledge of allegiance. In a nation on the brink of war, Jehovah’s Witnesses nationally were branded as traitors.

“It was open season on us,” said Lillian Gobitis. Legal historian Shawn Francis Peters explains further in his book “Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution,” adding that Jehovah’s Witnesses “were beaten, kidnapped, tarred and feathered, throttled on castor oil, tied together and chased through streets, castrated, maimed, hanged, shot, and otherwise consigned to mayhem.”

This caused three Justices — Hugo Black, William O. Douglas, and Frank Murphy — to openly acknowledge in another case, Jones v. City of Opelika (1942), that they had made a mistake in Gobitis. They collectively wrote:

Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be.

The Court revisited the flag-salute controversy in 1943 — only three years after Gobitis and after the United States was fully embroiled in World War II. Given the jingoism during this wartime period, it is all the more remarkable what the Supreme Court did in a case out of West Virginia where sisters Marie and Gathie Barnette were expelled from Slip Hill Elementary for refusing to salute the flag. This time, the Supreme Court ruled in favor of the students by a 6-3 vote on June 14 — Flag Day.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion.

Stone was now Chief Justice, and he could have kept the case for himself to write. But instead he assigned the majority opinion in West Virginia Board of Education v. Barnette (1943) to Justice Robert Jackson — one of the Court’s greatest wordsmiths. 

Jackson did not disappoint, writing in memorable language some of the most memorable passages in all of Court history: 

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion . . . The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

The decision in Barnette was important for many reasons. First, it helped the Jehovah’s Witnesses immensely in many quarters of the country. Second, it established that public school students have some level of First Amendment rights in school. And third, the Court established the no-compelled speech doctrine. Under this doctrine, government officials do not have carte blanche to force individuals to believe certain things or speak certain phrases.

The Court creates the ‘fighting words’ exception to free speech 

The Jehovah’s Witnesses won most of their First Amendment battles in the High Court — but not all of them. One notable loss with far-reaching consequences was Chaplinsky v. New Hampshire (1942), in which the Court created the controversial fighting words doctrine. 

The case involved the prosecution of Jehovah’s Witness Walter Chaplinsky in Rochester, New Hampshire, for cursing at a local marshal named Bowering. Chaplinsky allegedly yelled: “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists!”

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Authorities charged Chaplinsky with breach of the peace under a broadly worded New Hampshire law that provided: 

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.

The statute is far too broad by today’s standards. It would be declared unconstitutionally overbroad. However, the New Hampshire Supreme Court narrowly construed the statute to apply only to “fighting words.” On further appeal, the Supreme Court took this idea of “fighting words” and ran with it. 

Writing for a unanimous Court, Justice Frank Murphy explained that there have always been certain narrow and limited classes of speech not protected by the First Amendment. These include fighting words, or “words which by their very utterance inflict injury or cause an immediate breach of the peace.” Murphy reasoned that such fighting words do not contribute meaningfully to civil discourse or the advancement of ideas. He added that such cursing was of “such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 

The Court’s decision in Chaplinsky not only created the fighting words doctrine but also the concept of categorical exceptions to protected speech. In other words, one key methodology in First Amendment jurisprudence is determining whether speech falls into a narrow exception such as fighting words, true threats, incitement to imminent lawless action, or obscenity. 

The Court has narrowed these unprotected categories over time. The fighting words doctrine is no exception, though it remains an active doctrine in the lower courts. 

The government can’t ban leafleting

Another landmark Jehovah’s Witnesses First Amendment decision is Lovell v. City of Griffin (1938). The case involved the attempts of Alma Lovell to hand out religious leaflets in Griffin, Georgia, which vigorously resisted her efforts.

The city had an ordinance that prohibited distribution of leaflets without first obtaining a permit from city officials. The ordinance decreed that distributing leaflets without a permit was a “nuisance” and a fineable offense. Sure enough, city officials deemed the expressive actions of Lovell as a nuisance and fined her, which the Witnesses challenged in court.

Justice Stone was correct that all owe a debt of gratitude to the Jehovah’s Witnesses, who challenged city officials across the country and whose legal battles contributed mightily to First Amendment jurisprudence.

“We think the ordinance is invalid on its face,” wrote Chief Justice Charles Evans Hughes “Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.” 

Hughes also emphasized that freedom of the press included leaflets and pamphlets, writing: “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.” By directly referencing Paine, whose 47-page pamphlet “Common Sense” famously advocated for colonial independence from Great Britain, Hughes places Jehovah’s Witnesses alongside the nation’s founders, almost as if pointing to them as the inheritors of a noble tradition carried on by those who have been willing to stand up and fight for their freedoms.

Conclusion 

Justice Stone was correct that all owe a debt of gratitude to the Jehovah’s Witnesses, who challenged city officials across the country and whose legal battles contributed mightily to First Amendment jurisprudence. Their courage and persistence — sometimes in the face of abject discrimination and even violence — should inspire all committed to First Amendment freedoms.