Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P49 ppsx

On appeal, the Supreme Court reversed the lower courts, holding that the school district’s require-ment that students salute the flag did not unconstitutionally infringe their religious

FIXED CHARGES

Costs that do not vary with changes in output and

would continue even if a firm produced no output

at all, such as most management expenses,

interests on bonded debt, depreciation, property

taxes, and other irreducible overhead

FIXTURE

An article in the nature of PERSONAL PROPERTY

which has been so annexed to the realty that it is

regarded as a part of the real property That which

is fixed or attached to something permanently as

an appendage and is not removable

A thing is deemed to be affixed to real property

when it is attached to it by roots, imbedded in it,

permanently resting upon it, or permanently

attached to what is thus permanent, as by means

of cement, plaster, nails, bolts, or screws

Goods are fixtures when they become so

related to particular real estate that an interest

in them arises under real estate law, e.g a furnace

affixed to a house or other building, counters

permanently affixed to the floor of a store, or a

sprinkler system installed in a building

Fixtures possess the attributes of both real and

personal property

Types

Fixtures are generally classified as agricultural,

domestic, ornamental, or trade Agricultural

fixtures are articles that are annexed for the

purpose of farming Domestic and ornamental

fixtures are objects that a tenant may attach to a

unit in order to render it more habitable

Stoves, shelves, and lighting equipment are

types of domestic fixtures Ornamental fixtures

include curtains, chimney grates, blinds, and

beds fastened to walls

Trade fixtures are articles affixed to rented

buildings by merchants, in order to pursue the

business for which the premises are occupied

They encompass those items that merchants

annex to the premises to facilitate the storage,

handling, and display of their stock for sale to

the public—such as booths, bars, display cases

and lights—that are usually removable without

material damage to the premises The objective

of this rule is to promote trade and industry

A tenant, however, has no right to disengage a

trade fixture if its detachment would cause

substantial damage to the premises

Requirements

The article must be physically annexed to the realty or something appurtenant thereto in order for it to become a fixture Annexation

to land occurs when the object is perma-nently affixed to the property through the application of plaster, cement, bolts, screws, nuts, or nails

The attached article must also be adapted to the intended use or purpose of the realty so that

it effectively becomes inseparable from the land itself

The intention of the person who attaches the article determines whether or not the article

is a fixture The individual is not required to verbalize the intent, although the courts will evaluate such expressions The courts consider the tenant’s intent, which is inferred from all of the facts and circumstances concerning the actual annexation of the object, such as the nature of the article affixed, the method of annexation, and the extent to which the object has been integrated into the real estate

Agreement of the Parties

The parties may enter into an agreement in regard to the nature of an item to be utilized with realty Statutes confer this right in some jurisdictions, and these agreements are enforce-able whenever the rights of third persons are not violated

The terms of a lease often define the rights

of aLANDLORD AND TENANTin regard to fixtures If the lease unequivocally stipulates that the tenant has the right to remove particular articles, the fact that the removal will damage the rented premises is immaterial

Fixtures are usually attached to rented premises for the tenant’s benefit without any intention of increasing the value of the land-lord’s property Generally when no agreement exists between the parties, articles annexed by the tenant may be detached by the tenant, during the term of the tenancy, provided such can be done without damaging the premises

The law favors the tenant’s position that certain articles should be regarded as PERSONAL PROPERTYrather than as part of the realty Such improvements are those made to the rented premises by a tenant for personal enjoyment and use and, therefore, should retain their character as personal property

Time of Removal

If a trade fixture is not removed from the premises within the period specified in the lease,

it becomes part of the realty and the landlord acquires title to it A tenant’s failure to remove domestic fixtures within the proper period will usually have the same result The tenant is presumed to have abandoned the fixtures by failing to remove them

The amount of time allotted to the tenant to remove the fixtures varies In some jurisdic-tions, the objects must be removed during the term of the tenancy The right to remove the articles terminates with tenancy, in some states;

whereas, in others, the tenant may remove the articles within a REASONABLE TIME after the expiration of the tenancy The facts and circumstances of each case determine what period constitutes a“reasonable time.”

The landlord can expressly consent to the tenant’s removal of the fixtures even after the conclusion of the lease term or the surrender of possession If the owner persuades the tenant to leave fixtures on the premises for some particular objective, he or she cannot acquire title to the fixtures because the tenant has postponed their removal

In most states, if a tenant accepts a new lease that contains no provisions concerning articles attached during tenancy under the prior lease, the tenant will lose the right to remove them At the expiration of the initial lease, the fixtures become part of the realty By accepting the new lease, the tenant acquires a temporary interest in both the fixtures and the land

Generally, an extension of the original lease does not deprive the tenant of the right to remove fixtures The tenant’s right of removal is lost, however, if he or she merely stays or holds over without extending the current lease

If the landlord prevents the tenant from detaching fixtures to which he or she is entitled, the time for removal is extended until it can be accomplished If the landlord wrongfully ends the tenancy and the tenant is ousted, the tenant has a reasonable time in which to remove his or her fixtures

After the tenancy expires, a landlord can order the tenant to unfasten unwanted fixtures

If the tenant fails to do so, the landlord can have the fixtures removed and charge the tenant for expenses incurred in their removal

FLAG The flag is the official banner of a state or nation, often decorated with emblems or images that symbolize that state or nation

On the U.S flag, 13 horizontal stripes (in red and white) represent the original 13 colonies The 50 white stars, representing the 50 states, are arranged in rows on a field of blue The U.S flag

is sometimes called the Stars and Stripes, Old Glory, or the Red, White, and Blue

Titles 4 and 36 of theU.S.CODEgovern when, where, and how a flag may be displayed; how a flag may be used; and the proper means of disposing of a worn or soiled flag

The Stars and Stripes became a popular and revered symbol of the United States during and after the Civil War The Union’s victory over the CONFEDERACYand the return to a united country engendered patriotic fervor that was embodied in this symbol When large numbers of immigrants entered the United States during the late nineteenth and early twentieth centuries, the flag was appropriated as a symbol of nationalism and patriotism by groups that felt that the cultures and customs of the new citizens threatened national unity and security During the same period, as the advertising industry grew along with rapid industrialization, the flag was com-monly used for commercial purposes Flags or images of flags were used to promote everything from toilet paper to chewing gum The flag was also appropriated for political gain In 1896 the campaign manager for Republican presidential candidate WILLIAM MCKINLEY distributed millions

of flags for use at McKinley’s rallies The McKinley campaign also distributed buttons bearing the likeness of a flag, as symbols of support for the candidate

The turn of the century saw the beginnings of

a movement to protect and honor the flag In the early part of the twentieth century, schools commonly required students to salute the flag each morning Most students complied happily, but some students refused to participate in the salute, mainly on religious grounds By 1940 at least 200 public school students had been expelled in 16 states for refusing to salute the flag Many of them were Jehovah’s Witnesses, who maintained that any salute to the national flag constituted an act of idolatry and thus violated their religious beliefs The expulsion of two Jehovah’s Witnesses was challenged in Minersville School District v Gobitis (310 U.S

586, 60 S Ct 1010, 84 L Ed 1375 [1940]).

In Gobitis, a father sued to enjoin the school

district from prohibiting his children’s

atten-dance at school after they refused to salute

the flag The U.S district court granted the

injunction allowing the children to return to

school, and the U.S Court of Appeals for the

Third Circuit affirmed the district court On

appeal, the Supreme Court reversed the lower

courts, holding that the school district’s

require-ment that students salute the flag did

not unconstitutionally infringe their religious

freedoms Writing for the 8–1 majority, Justice

FELIX FRANKFURTERsaid the salute requirement was

constitutional as long as the students’ “right to

believe as they please, to win others to their

way of belief, and their right to assemble in

their chosen places of worship for the devotional

ceremonies of their faith, are fully respected.”

A few years later, the Court reversed its

position, in West Virginia State Board of

Education v Barnette (319 U.S 624, 63 S Ct

1178, 87 L Ed 1628[1943]), another challenge

to mandatory flag salutes brought by members

of Jehovah’s Witnesses In Barnette, the Court

held that the school board could not require

public school teachers and students to salute the

flag The Court said FREEDOM OF THE PRESS, of

assembly, and of worship may be restricted

“only to prevent grave and immediate danger to

interests which the state may lawfully protect.”

In a companion case, Taylor v Mississippi (319

U.S 583, 63 S Ct 1200, 87 L Ed 1600[1943]),

the Court overturned the convictions of two

people found guilty under a state statute that

forbade the dissemination of information

advo-cating refusal to salute, honor, or respect the

flag The Court held that the statute infringed

FREEDOM OF SPEECHand freedom of the press The

Barnette and Taylor decisions signaled the

Court’s emerging support of the notion that

freedom of speech extends to symbolic as well

as oral and written speech

Also during the early 1900s, numerous state

laws were passed prohibiting the desecration of

the flag or the use of the flag in advertising

Some of these laws were struck down by state

courts, but in 1905 the U.S Supreme Court

upheld their validity when it affirmed a lower

court that had refused to strike down a

Nebraska statute prohibiting the use of the flag

in advertising (Halter v Nebraska, 205 U.S 34,

27 S Ct 419, 51 L Ed 696[1907]) The Court

said the flag, as an emblem of national authority and an object of patriotic fervor, should not be associated with personal or commercial inter-ests It held that the Nebraska statute did not infringe PERSONAL PROPERTY rights or individual freedom

For 80 years, Halter was cited as precedent

in cases upholding flag desecration statutes, and these laws stood intact through most of the twentieth century The laws were invoked frequently to prosecute demonstrators who burned flags to PROTEST U.S involvement in theVIETNAM WAR Between 1965 and the end of the war in 1975, as many as 1,000 arrests were made under various state laws prohibiting the desecration of the flag

The Supreme Court addressed the constitu-tionality of flag desecration laws again inTEXAS V JOHNSON (491 U.S 397, 109 S Ct 2533, 105 L

Ed 2d 342[1989]) During the 1984 Republican National Convention, in Dallas, the defendant, Gregory Lee Johnson and 100 others staged a protest outside the convention hall During the demonstration, Johnson burned a U.S flag

He was later arrested for violating the Texas Venerated Objects Law (Tex Penal Code Ann

§ 42.09[a] [3] [Vernon 1974]), which outlawed intentionally or knowingly desecrating a flag in a

A group of senators, including former Senator Bob Dole, speak in support of a constitutional amendment banning flag desecration during a June 1990 press conference.

AP IMAGES

way that some observer might find seriously offensive Johnson was convicted, but his con-viction was overturned by the Texas Court of Criminal Appeals (Johnson, 755 S.W.2d 92 [Tex

Crim App 1988]) The state appealed to the U.S

Supreme Court In a 5–4 decision, the Court affirmed the court of criminal appeals, holding that Johnson’s conduct was expressive communi-cation, a form of speech that requires FIRST AMENDMENTprotection Addressing Texas’s claim that it had a legitimate interest in preventing a BREACH OF THE PEACE, the Court observed that no DISTURBANCE OF THE PEACE occurred or was threatened by Johnson’s burning of the flag The Court also held that the venerated objects statute

was subject to the strictest constitutional scrutiny because it restricted Johnson’s freedom of expression based on the content of the message

he sought to convey The Court concluded,“We

do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Many people were outraged by the Johnson decision President GEORGE H W BUSH de-nounced flag burning and proposed a CONSTITU-TIONAL AMENDMENT to overturn Johnson The Senate and the House of Representatives passed numerous resolutions calling for a constitutional amendment outlawing flag burn-ing When it became clear that a constitutional

What Is the Appropriate Use of the Confederate Flag?

After months of open and

conten-tious debate, the General Assembly

of the State of South Carolina agreed in

May 2000 that the Confederate flag would

be taken from the State House dome and

placed at the Confederate Soldiers’

Mon-ument State Governor Jim Hodges signed

the bill, which was supported by the

South Carolina Chamber as part of the

Business Agenda and the Courage to

Compromise coalition, on May 30

“To-day, we bring this debate to an honorable

end Today, the descendants of slaves and

the descendants of Confederate soldiers

join together in the spirit of mutual

respect,” Hodges stated in a speech just

prior to the signing The actual relocation

of the flag on July 1, 2000, complete with

pomp and circumstance, was attended by

3,000 people The official ceremony lasted

eight minutes The fallout lasted for eight

months

In 1994 Jim Folsom Jr., the

gover-nor of Alabama, decided to move a

Confederate flag from the state capitol’s

room to a nearby war memorial His

decision was partially a response to

pressure from the National Association

for the Advancement of Colored People

(NAACP) Afterward, South Carolina was

the only former member of the

CONFEDERATE STATES OF AMERICA to fly the Confederate flag on its capitol building, though some southern states still used it

as part of their flag design The issue waxed and waned in South Carolina’s legislature for the next several years without resolution In late 1999 the NAACP again mobilized, calling for a BOYCOTT of all state tourism, athletic contests, cultural events, and film-making in South Carolina until the flag was removed

Benedict College, an historically black institution, canceled its September

2, 2000, football game with South Carolina State University after the latter refused to move the game from its campus in Orangeburg, South Carolina,

to Charlotte, North Carolina This event was followed by Bryn Mawr College, Haverford College, and Swarthmore College all canceling spring-break trips

to South Carolina’s coast Furthermore, the National Collegiate Athletic Associa-tion’s Division I Board of Directors threatened to move games in the men’s basketball tournament out of South Carolina if the flag was not removed from the state dome

The issue returned to the state legislature’s general assembly, where,

following several weeks of emotional and grueling battle, a compromise agree-ment was reached in May 2000 by a House vote of 66-43 and a Senate vote of 35-8 The flag came down and took up its new home at the Solders’ Memorial Senator Arthur Ravenel claimed, “The only people that seem to be unhappy are the extremists.”

The NAACP, however, took um-brage with the new location, complaining that the flag had become more visible than ever It sent out mailings, urging the continuation of its state boycott and arguing that the flag also should be removed from all state grounds, includ-ing the Soldiers’ Memorial State senator Robert Ford, a black supporter of the compromise, defended its new location, stating that, contrary to the NAACP’s contentions, the flag was not “in any-body’s face” in its new location House majority leader Rick Quinn remarked that the NAACP had“essentially become professional agitators and I think some-one needs to stand up to them.” Several hundred flag supporters gathered at the ceremony and vowed that the flag would again rise above the state capitol

After the flag’s removal in South Carolina, Georgia followed In January

amendment was probably not feasible, Congress

instead passed the Flag Protection Act of 1989

(Pub L No 101-131, 103 Stat 777[amending

18 U.S.C.A § 700]), which made it a criminal

offense to mutilate, deface, or burn a flag; place

a flag on the floor or ground; or walk on a flag

The act did not mention the motive of the actor

or the effect on observers of the act With these

omissions, the statute was designed to be

content neutral and to pass the most stringent

constitutional scrutiny

The Flag Protection Act was tested in United

States v Eichman (496 U.S 310, 110 S Ct 2404,

110 L Ed 2d 287 [1990]) In Eichman, the

defendants were arrested for burning a flag in a

protest They moved to dismiss the charges on the ground that the Flag Protection Act violated the First Amendment The district court dismissed the charges, and the government appealed directly to the Supreme Court Affirm-ing the district court’s findings, the Court reasserted its position that flag burning is expressive conduct protected by the First Amendment The Court conceded that the federal act differed from the Texas statute in Johnson because it did not appear to regulate the content of the message conveyed by the prohibited acts Nonetheless, the Court held that the government’s interest in preserving the flag as a national symbol was implicated under

2001, Georgia governor Ray Barnes

persuaded lawmakers to shrink the

Confederate battle emblem prominently

displayed on the state flag to a small box

in the corner of the flag The Confederate

battle emblem had been added in 1956

while Georgia schools were segregated

Sonny Perdue defeated Barnes in an

upset victory in 2002, due in no small

part to the flag controversy In April

2003 Perdue endorsed a new flag that

employs the so-called “stars and bars,”

another historic Confederate banner

However, CIVIL RIGHTSgroups, including

the NAACP and Rainbow/PUSH, heavily

criticized Perdue’s stance, demanding

that the flag have no Confederate

symbols On April 25, 2003, Georgia’s

legislature approved a flag that looks

similar to the Confederate battle emblem

but does not have the Dixie cross or

other Confederate symbols

Other states have had mixed

reac-tions to the flag controversy Florida

quietly removed its Confederate flag

from the state capitol in 2001

Missis-sippi, however, the last bastion of the Old

South, held its ground In April 2001, by

a two-thirds division along mostly racial

lines, voters overwhelmingly rejected a

bill to replace the state’s “Southern

Cross” on its flag, which dates back to

1894 Mississippi, the poorest state in the

Union, showed little concern for any

threatened boycotts

The flag controversy revolves around

the intended meaning of the flag Clearly,

if a state’s flag represents “symbolic

speech,” there must be an intent to convey a particular message that is understood by those who view it, in order to invokeFIRST AMENDMENT consid-eration Under these conditions, the time, place, and manner of display may

be controlled if it can be proven that its display would cause violence or mayhem

According to the NAACP, the Confeder-ate battle flag and emblem “have been embraced as the primary symbols for the numerous modern-day groups advocat-ing white supremacy.” The NAACP has referred to the flag as a “banner of secession and slavery.” Some southern whites see it as a banner of honor, however, for the Confederate soldiers who lost their lives during theU.S.CIVIL WAR Furthermore, they interpret the war

to have been more about state and federal power and states’ rights to secede from a union that they had joined voluntarily and less as a war to end the institution of slavery Still others see the flag as a banner of“treason against the United States government.”

The flag’s significance on the state building seems to send two messages

Some have charged that it was more than coincidence that the South Carolina Confederate flag first flew over the state capitol in the early 1960s: It was raised in

a centennial celebration of the Civil War

Others believe it was also meant to send a message to the grassroots CIVIL RIGHTS MOVEMENT, which was just beginning to mobilize In a country where historians continued to debate the reasons for the

Civil War, the flag’s message has been interpreted according to passing ideolog-ical or economic battles

Issues regarding southern heritage and the Confederate flag also were fought over in schools In October 2000, the U.S Supreme Court declined review of the Eleventh Circuit’s decision in Denno v School Board of Volusia County, Fla (218

F 3d 1267[11th Cir Fla.], Jul 20, 2000) which upheld a school’s right to discipline

a student for displaying a small Confeder-ate flag at school The school had argued that the flag was such a controversial symbol that its display invited disruption The Eleventh Circuit panel first issued an opinion allowing the student to proceed with his case against the school board then later withdrew its opinion and issued a dismissal Since this decision, federal courts have upheld disciplinary actions against students who display Confederate symbols or flags on their clothing or on the vehicle they drive to school

FURTHER READINGS Bonner, Robert E 2002 “Flag Culture and the Consolidation of Confederate National-ism ” Journal of Southern History 68 (May) Magnuson, Carolyn 2003 “South Carolina Man Had No Constitutional Right to Display Confederate Flag Decals at Work ” Baltimore Daily Record (June 3) Main, Carloa T 2003 “The Civil War: The Confederate Flag Still Stirs Debate ” National Law Journal 25 (June 23) CROSS REFERENCE

States ’ Rights.

the act only when a person’s treatment of the flag communicated a message that opposed the government’s ideals In effect, the act did regulate the content of protected speech The Court concluded that the government may not prohibit the expression of an idea, no matter how disagreeable or offensive that idea may be

The Eichman decision prompted President Bush to renew his efforts to gain passage of a constitutional amendment banning flag desecration The measure came to a vote in June

1990 By then, public and political interest in the issue had dissipated, and many members of Congress who had voted for the Flag Preserva-tion Act were unwilling to support a change to the Constitution The proposed amendment failed by a vote of 254 to 177 in the House of Representatives and 58 to 42 in the Senate

During the 1990s and 2000s, the House of Representatives continued to consider constitu-tional amendments that would allow Congress

to enact legislation prohibiting the desecration

of the flag In 2003 the House passed a proposed amendment that reads, “The Congress shall have the power to prohibit the physical desecration of the flag of the United States”

(H.R.J Res 4[108th Cong., 1st Sess.]) Accord-ing to one of the amendment’s supporters, Representative Steve Chabot (R-OH), “If we allow [the flag’s] defacement, we allow our country’s gradual decline.” The House approved the resolution by a vote of 300 to 125 The Senate, however, never voted on the resolution

In 2005 and 2006, both chambers consid-ered the issue again On June 22, 2005, the House approved House JOINT RESOLUTION

10 by a vote of 286 to 130 The Senate then considered the proposal, which very nearly passed However, the resolution only received

66 votes, one shy of the required two-thirds majority Democrats opposed to the amend-ment have called the bi-annual legislation a“rite

of spring” for House Republicans who support the measure

FURTHER READINGS Curtis, Michael Kent, ed 1993 The Constitution and the Flag, Volume I: The Flag Salute Cases and Volume II: The Flag Burning Cases New York: Garland.

Dorsen, Norman 2000 “Flag Desecration in Courts, Congress, and Country ” Thomas M Cooley Law Review

17 (September): 417 –42.

Dyroff, David 1991 “Legislative Attempts to Ban Flag Burning ” Washington University Law Quarterly 69 (fall).

Goldstein, Robert Justin 2000 Flag Burning and Free Speech: The Case of Texas v Johnson Lawrence: Univ Press of Kansas.

——— 1995 Saving “Old Glory.” Boulder, Colo.: Westview Press.

Padover, Saul 1995 The Living U.S Constitution New York: Meridian.

Persily, Nathaniel, Jack Citrin, Patrick J Egan, eds 2008 Public Opinion and Constitutional Controversy New York: Oxford Univ Press.

Ward, Kenneth D 1998 “Free Speech and the Development

of Liberal Virtues: An Examination of the Controversies Involving Flag-Burning and Hate Speech ” University of Miami Law Review 52 (April): 733–92.

CROSS REFERENCES Censorship; First Amendment; Religion

FLAG SALUTE CASES Within a span of four years, the U.S Supreme Court took two different stands on whether disciplining students who refused to salute the American flag violated their FIRST AMENDMENT rights of FREEDOM OF SPEECH and RELIGION In Minersville School District v Gobitis, 310 U.S

586, 60 S Ct 1010, 84 L Ed 1375 (1940), the Court upheld the constitutionality of a Penn-sylvania regulation that permitted the expulsion

of children for not saluting the flag or reciting the Pledge of Allegiance to it However, in West Virginia State Board of Education v Barnette,

319 U.S 624, 63 S Ct 1178, 87 L Ed 1628 (1943), the Court reversed itself and overturned

a West Virginia law that compelled public school children to salute the flag and recite the Pledge of Allegiance The two decisions have come to be known as the Flag Salute cases and are important for the First Amendment issues that were raised and decided

In the first case, Lillian and William Gobitis, ages ten and twelve, were expelled from the Minersville, Pennsylvania public schools in

1935 for failing to salute the flag and recite the Pledge of Allegiance The school district had required the salute and pledge sinceWORLD WAR

I, but the Gobitis children were the first to challenge the practice They refused because they were members of the Jehovah’s Witnesses,

a religious group whose members believe that it

is blasphemous to worship, serve, or pledge allegiance to any secular image because such idolatry interferes with their undivided loyalty

to God As a result of their expulsion, their father had to pay for them to enroll in a private school Their parents filed a lawsuit, claiming

that the children’s due process rights had been

violated by the school district

The U.S Supreme Court, in an 8–1 decision,

upheld the right of the school district to mandate

the salute and pledge, concluding that school

district’s interest in creating national unity was

enough to allow them to require students to

salute the flag JusticeFELIX FRANKFURTER, in his

majority opinion, rejected the idea that the

freedom to follow religious conscience under

the First Amendment was unlimited Therefore,

the Court needed to determine what standard to

apply when reviewing religious-freedom issues

The Court opted for a balancing test, pitting the

state’s secular interests against the religious

interests of the children

In this case, the school district’s interest in

creating national unity was more important

than the rights of the students to refuse to salute

the flag Justice Frankfurter noted that national

unity is the basis of national security To allow

children not to salute the flag or to recite the

Pledge of Allegiance would weaken the effect of

the collective patriotic exercise and thereby

injure national unity and security In his view,

“The mere possession of religious convictions

which contradict the relevant concerns of a

political society does not relieve the citizen from

the discharge of political responsibilities.”

Despite the fact that members of the Court

disagreed that a compulsory flag salute was the

best way to create national unity, the school

district’s error in judgment was not sufficient to

declare their practice unconstitutional In

addi-tion, the Court concluded that students would

not be pulled away from their faith by reciting

the pledge, because their parents had a much

greater influence than the school in their

religious faiths

Justice HARLAN F STONE, in his dissenting

opinion, argued that it was the task of the

courts to demand a reasonable

accommoda-tion between the interests of government and

the interests of liberty He concluded that 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.” The

govern-ment may suppress religious practices that are

dangerous to morals and the public safety,

“but it is a long step, and one which I am

unable to take, to the position that

govern-ment may, as a supposed educational measure

and as a means of disciplining the young, compel public affirmations which violate their religious conscience.”

The U.S entry into WORLD WAR II after the Japanese attack on Pearl Harbor on December

7, 1941, was followed with renewed public displays of patriotism Barnette arose in 1942, when the West Virginia State Board of Educa-tion responded to events by adopting a resolu-tion requiring all public school children to salute the American flag and recite the Pledge of Allegiance as part of the official activities carried out by teachers of kindergarten through twelfth grade Students who failed to salute the flag or

to recite the Pledge of Allegiance at appropriate times were subject to discipline, including expulsion from school and detention at state institutions for juvenile delinquents Parents were subject to prosecution for the noncon-forming behavior of their children

A lawsuit was filed on behalf of the Jehovah’s Witnesses, whose children had been disciplined

in West Virginia schools for refusing to salute the flag or to recite the Pledge of Allegiance In addition, a number of parents had been prose-cuted for allowing their children to engage in such unpatriotic demonstrations The West Virginia federal district court issued an injunction restraining the state from continuing to enforce the school board’s resolution Barnette v West Virginia State Board of Education, 47 F.Supp 251 (1942) The school board then appealed the case directly to the U.S Supreme Court

In a 6–3 decision, the Court struck down the resolution because it contravened the First Amendment to the United States Constitution

The dramatic shift came, in part, with the replacement of three justices on the Court after Gobitis Justice ROBERT JACKSON, in his majority opinion, wrote that the resolution violated the students’ freedom of speech and freedom of religion.“The very purpose of a Bill of Rights,”

the Court explained, is “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach

of majorities .” The Court emphasized that under the BILL OF RIGHTS, neither freedom of speech nor freedom of worship may be curtailed

by the popular vote of a legislative assembly, unless it is through the amendment process set forth in Article V of the U.S Constitution, and then only with the approval of three-fourths of the states

Justice Jackson observed that the Founding Fathers “set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.” Saluting the American flag and reciting the Pledge of Allegiance are forms of symbolic expression, the Court ruled Refusing

to salute the flag or recite the Pledge of Allegiance may be a form of political PROTEST, the Court pointed out, or it may reflect a conscientious decision made by a person of devout religious belief In either case, the Court concluded, such symbolic expression is pro-tected by the First Amendment.“If there is any fixed star in our constitutional constellation,”

the Court wrote, “it is that no official, high or petty, can prescribe 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.”

In overruling Gobitis, the Supreme Court questioned that case’s premise that national security is contingent upon national unity The Court noted that Gobitis had been subjected to much criticism, and cited a number of civic organizations that compared the mandatory flag salute regulations in the United States to similar laws that had been promulgated in Nazi Germany The Court in Barnette stated that national security is hardly vindicated by permit-ting the government to expel a handful of children from school

The government may instruct children on the value of patriotism, and it may acquaint students with the historical importance of the American flag, but the Court cautioned that government must not become a partisan of any religion, class,

or faction in doing so When states are fulfilling their crucial mission of educating impressionable children, the Court stressed, public schools must not“strangle the free mind at its source, and teach youth to discount important principles of govern-ment as mere platitudes.”

FURTHER READINGS Curry, James A., Richard B Riley, and Richard M.

Battistoni 2003 Constitutional Government: the Ameri-can Experience Dubuque, IA: Kendall/Hunt.

Johnson, John W 2001 Historic U.S Court Cases, Vol II.

New York: Routledge.

Stevens, Leonard A 1973 Salute! The Case of the Bible vs the Flag New York: Coward, McCann & Geoghegan.

CROSS REFERENCE Symbolic Speech.

FLAGRANTE DELICTO [Latin, In the act of perpetrating the crime.]

FLETCHER V PECK

An 1810 decision by the U.S Supreme Court, Fletcher v Peck, 10 U.S (6 Cranch) 87, 3 L Ed

162, held that public grants were contractual obligations that could not be abrogated without fair compensation, even though the state legislature that made the grant had been corrupted and a subsequent legislature had passed an act nullifying the original grant The PLAINTIFF, Robert Fletcher, brought suit against John Peck for breach of covenant on land that Fletcher had purchased in 1803 This land was part of a tract of 35 million acres in the area of the Yazoo River (Mississippi and Alabama) that the state of Georgia had taken from the Indians and then sold in 1795 to four land companies for a modest sum ($500,000) for so much land The land companies then broke up the tract and resold parcels for enormous profits

When a new Georgia legislature learned in

1796 that some of the legislators who had voted

to sell the land had been stockholders in the companies that purchased the tract and that many of the legislators who had authorized the sale had received bribes from the land spec-ulators, it rescinded the original sale on the grounds that it had been attended by fraud and corruption

The property in question had passed through several hands before Peck purchased

it in 1800 Three years later, he sold the land to Fletcher with a deed stating that all the previous sales had been legal Fletcher, however, con-tended that the original sale to the land companies was void and that Peck was guilty

of breach of covenant because the land was not legally his to sell After aCIRCUIT COURTfound in favor of Peck, the case came before the U.S Supreme Court on a writ of error

Speaking for the Court, Chief Justice JOHN MARSHALL deplored the corruption that had found its way into the state legislature but found that the validity of a law cannot depend

on the motives of its framers Nor can private individuals be expected to conduct an inquiry into the probity of a legislature before they enter into a private contract on the basis of a statute enacted by that legislature

Marshall then turned to the question of

whether the statute enacted in 1796 could

nullify rights and claims established under the

bill that had authorized the land sale in 1795

Although he agreed that as a general principle

“one legislature is competent to repeal any act

which a former legislature was competent to

pass,” Marshall held that actions taken under a

law cannot be undone by a subsequent

legisla-ture If the law in question is a contract, he

reasoned, repeal of the law cannot divest rights

that have vested under the contract To hold

otherwise would be tantamount to seizing

without compensation property that an

indi-vidual had acquired fairly and honestly

In addition to basing his argument on such

general considerations, Marshall found that the

original grant was a contract within the

meaning of the Contract Clause of the U.S

Constitution, which provides that “No State

shall pass any BILL OF ATTAINDER, ex post

facto Law, or Law impairing the Obligation of

Contracts ” (Art I, § 10, clause 1)

Reasoning that the Constitution did not

distin-guish between contracts between individuals

and contracts to which a state was a party,

Marshall held that the Framers of the

Constitu-tion intended the clause to apply to both The

purpose of the clause, he explained, was to

restrain the power of the state legislatures over

the lives and property of individuals

Under the act rescinding the bill of 1795,

however, Fletcher would forfeit the property

“for a crime not committed by himself, but by

those from whom he purchased.” Thus the

rescinding act“would have the effect of an ex

post facto law” and would therefore be

unconstitutional Accordingly Marshall

con-cluded that in spite of the profits reaped by

the dishonesty of the land speculators, both

general principles and the U.S Constitution

prevented a state legislature from rendering a

contract null and void

Fletcher v Peck was the first case in which

the Supreme Court invalidated a state law as

contrary to the Constitution It also exemplified

the protective approach of the Marshall court

toward business and commercial interests In

Fletcher and later in the Dartmouth College case

(TRUSTEES OF DARTMOUTH COLLEGE V WOODWARD,

17 U.S.[4 Wheat.], 518, 4 L Ed 629 [1819]), the

Court expanded the scope of the term contract

and limited the degree to which the states could

encroach upon property rights and contractual obligations

FURTHER READINGS Magrath, C Peter 1966 Yazoo: Law and Politics in the New Republic—The Case of Fletcher v Peck Providence, RI:

Brown Univ Press.

Robertson, Lindsay G 2000 “ ‘A Mere Feigned Case’

Rethinking the Fletcher v Peck Conspiracy and Early Republican Legal Culture ” Utah Law Review 2000 (spring).

Smith, Jean Edward 1996 John Marshall: Definer of a Nation New York: Henry Holt.

FLOATING CAPITAL Funds retained for the purpose of paying current expenses as opposed to fixed assets

Floating capital is also known as circulating capital It encompasses (1) the raw materials consumed in each phase of manufacturing; (2) money designated for wages; and (3) products stored in the warehouses of manufacturers or merchants

FLOATING LIEN

A security interest retained in collateral even when the collateral changes in character, classification,

or location An inventory loan in which the lender receives a security interest or general claim on all

of a company’s inventory A security interest under which the borrower pledges security for present and future advances

FLOTSAM

A name for the goods that float upon the sea when cast overboard for the safety of the ship or when a ship is sunk Distinguished from jetsam (goods deliberately thrown over to lighten ship) and ligan (goods cast into the sea attached to a buoy)

F.O.B

An abbreviation for free on board, which means that a vendor or consignor will deliver goods on a railroad car, truck, vessel, or other conveyance without any expense to the purchaser or consignee

FOLLOW

To conform to, comply with, or be fixed or determined by; as in the expression “costs follow the event of the suit.” To go, proceed, or come after To seek to obtain; to accept as authority, as

in adhering to precedent

vFOLTZ, CLARA SHORTRIDGE Clara Shortridge Foltz has been called Califor-nia’s First Woman The first woman on the Pacific Coast to pass the bar, she did so after successfully lobbying the legislature to change a law that denied women the right to become lawyers She was the first woman to serve as clerk of the judiciary committee of the state assembly, to be selected as a trustee of the State Normal School, to serve on the California State Board of Charities and Corrections, to serve as a deputyDISTRICT ATTORNEYin Los Angeles, and to run for governor She was the first woman to argue a motion in the New York City courts

And, in 1893, she was the first person to propose a model public defender bill—the blueprint for the system that remains in place today Her efforts resulted in the passage of the bill in more than thirty states

Foltz was born July 16, 1849, in New Lisbon, Henry County, Indiana, the second of five children, and the only girl, to Elias Willets Shortridge and Telitha Cumi Harwood Short-ridge, both of Indiana Her father was at times a druggist, a lawyer, and a preacher in the Campbellite Church

The Shortridges moved to Dalton Town-ship, Wayne County, Indiana, the next year By the time Clara was eleven years old, the family was living in Mount Pleasant, Iowa There, she received her only formal education, at Howe’s Academy, a progressive school whose mission and purposes were coeducation, women’s rights, and the abolition of slavery She earned honors in Latin, philosophy, history, and rhetoric At age 14, she accepted a teaching

post near Keithsburg, Illinois, which she held for only one term because, at age 15, on December 30, 1864, she eloped with a Union soldier, Jeremiah Richard Foltz

The Foltzes lived on a farm in Iowa, where they had the first three of their five children In

1871, Foltz’s husband moved to Oregon; in

1872, Foltz and their four children (the youngest being nine weeks old) followed She found him working as a clerk for miniscule pay

To support her family, she went to work as a dressmaker and took in boarders

In 1875 Foltz and her family moved to San Jose, California Although her MARRIAGE ended there in 1877, her public life began Foltz became involved in the SUFFRAGE movement, attending, and then giving, lectures Foltz also began her legal career in San Jose She attempted to study with the preeminent mem-ber of the legal community Francis Spencer, but

he refused her request Foltz then turned to

C C Stephens, who was a friend, an occasional legal partner, and a fellow silver prospector of her father’s Stephens accepted her as a student

at his firm, Black and Stephens

In 1877 California law allowed only white males over 21 years of age and of good moral character to become lawyers Foltz wrote a proposed amendment to section 275 of the Code ofCIVIL PROCEDURE, changing“white male”

to“person.” Foltz and her sister suffragist Laura deForce Gordon lobbied throughout the twen-ty-second session of the California Legislature for the Woman Lawyer’s Bill It easily passed the senate but met strong opposition in the assembly Foltz’s ally, the senate sponsor of

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1849 Born, New

Lisbon, Henry

County, Ind.

1861–65 U.S Civil War

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1875 Foltz and Shortridge families moved to San Jose, Calif.

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1878 Became first woman to join the bar in

California after passage of the Woman Lawyer's Bill

1879 Won right of women to attend California's

Hastings College of Law in Foltz v Hoge

1887–90 Practiced

in San Diego and

founded the San Diego Bee

1882 Mary McHenry became first woman to graduate from Hastings

1893 Introduced the Foltz Public Defender Bill

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1911 Women won the right to vote in California; Foltz began service as first woman deputy district attorney

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1914–18 World War I

1916–18 Published

New American Woman

magazine

1921 California passed statewide public defender bill

1934 Died, Los Angeles, California

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1934 Florence Allen appointed

to 7th Circuit, became first woman federal judge