The Jehovah’s Witness Cases

There is likely no group that has shaped the contours of the First Amendment more than the Jehovah’s Witnesses.  In the 1930s and 1940s, the Witnesses were not the soft-pedaling evangelists that many of us have encountered at our doorsteps.  To the contrary, they engaged in abrasive street preaching, untoward ridiculing of other faiths, and a staunch refusal to comport with the patriotism that infused a country at war.  As Sarah Barringer Gordon has noted, “the Witnesses were not interested in brotherhood; they were after converts. And the culture of tolerance that embraced them, even after the Supreme Court recognized the constitutional dimensions of their witness, did not produce a complementary tolerance within the Watch Tower Society.”

Shawn Francis Peters has noted that in response to the Witnesses’ practices, states and local communities “enacted new laws or applied existing ones to suppress their First Amendment freedoms of religion, speech, and assembly.” Restrictions against the Witnesses were routinely justified by ostensibly neutral policies enacted to preserve broader societal values. One particularly egregious example arose out of the prosecution of R.E. Taylor and other Witnesses under a Mississippi law enacted in 1942 “to secure peace and safety of the United States and State of Mississippi during war.” Although the law was widely understood as a measure taken to suppress the Witnesses, state officials insisted that it “is in no sense an anti-religious act and is not intended to interfere with proper religious liberty as recognized and enforced in the courts of this nation and the states.” Instead, they argued that the law would only regulate those “whose religious views conflict with the law of the land.”

The Witnesses turned to the courts, and in doing so, they shaped a generation of First Amendment jurisprudence. Between 1938 and 1946, their litigation efforts produced dozens of opinions, including twenty-three decisions at the Supreme Court.  They won almost all of them, including one of the most stunning reversals in Supreme Court history. In its 1940 decision Minersville School District v. Gobitis, the Court had rejected the pleas of the Witnesses to refuse to swear an oath to the United States in public schools. Just three years later, the Court overruled Gobitis in West Virginia v. Barnette.

The Witnesses sought liberty from the state for their own practices, but they advocated for its extension to others.  Their hostility toward outsiders sometimes hindered their cause. As Peters notes, “Even their staunchest defenders conceded that the Witnesses could be extraordinarily bothersome as they preached the Gospel in public.”

We will read four cases involving the Jehovah’s Witnesses for today’s class.  Notice that they do not all directly concern free exercise law, in part because of the Supreme Court’s reliance on free speech doctrine to resolve claims brought under the free exercise, assembly, and press clauses.  We will see this tendency again later in the course.  Is it a good or a bad development in the law?

We will also use these cases to touch upon some of the free speech doctrines that arise under them, including fighting words (Chaplinsky), compelled speech (Barnette), and charitable solicitation (Prince).

Reading Assignment:

  • Cantwell v. State of Connecticut, 310 U.S. 296 (1940)

  • Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

  • Prince v. Massachusetts, 321 U.S. 158 (1944)

Optional Reading: