Johnson v. State (1942)

Six months before the United States went to war with Japan and Germany in 1941, but as war hysteria was building, Joseph Paschall (Joe) Johnson, a farmer with eight children in the St. Joe (Searcy County) community, went to the county courthouse at Marshall (Searcy County) to get food relief for his family. He refused the county welfare commissioner’s demand that he salute the American flag in the commodities office because doing so would violate his Christian beliefs about swearing fealty only to God. He was denied commodities, arrested, and convicted of violating a 1919 state law prohibiting desecration of the flag. In the case of Johnson v. State of Arkansas (204 Ark. 476), the Arkansas Supreme Court upheld his conviction for showing contempt for the flag.

The case was one of a number of legal disputes arraying the nation’s sense of patriotism against First Amendment guarantees of freedom of speech and religion that reached the high courts of the states and nation during and after the two world wars. The disputes often involved legal and physical reprisals against the Christian religious sect known as Jehovah’s Witnesses, whose followers would not salute the flag.

Johnson, who was born in Louisiana and lived for a time in El Dorado (Union County) and Texas before buying thirty-nine acres of mountainside land in St. Joe, had wanted to enlist in the army at the age of seventeen when World War I began, but his mother would not let him. He would contend at his trial in Searcy County that he was fiercely patriotic and revered the flag but that he had studied his Bible and Jehovah’s Witnesses tracts and agreed with them that Psalm 115 dictated that Christians were to swear allegiance only to God in heaven and not to idols that were made by the hands of men. “That was my sincere belief,” Johnson testified at his trial. “The Bible says not to even salute your friend, but to call him only by name.”

In the patriotic fervor that followed the treaty ending World War I, in which over two million American soldiers had been mobilized and 117,000 had died in battle or from disease, the Arkansas General Assembly enacted Act 64. The law made it a misdemeanor to show public contempt for the flag “by word or act.” Like legislatures in other states, Arkansas adopted statutes or executive measures to prohibit gestures of disloyalty or lack of patriotism, aimed mainly at those who, like the Socialist leader Eugene V. Debs, had opposed American entry into the war or resisted the draft.

The case against Johnson rested on the actions and testimony of Nell Cooper, who was in charge of the county’s welfare commissary, which distributed federal commodities to the needy during the Great Depression. Cooper said she had heard rumors that Johnson had thrown in with Jehovah’s Witnesses, who would not salute the flag, and that he might be trying to get supplies for some of those people in addition to his wife and children. When Johnson showed up with others at the courthouse to get his monthly allotment, she said she believed him when he said all ten people were his family members, but she questioned him about his beliefs about the flag. When he seemed reluctant, she demanded that he salute the flag near her desk, and he refused. She and another person who was in the room testified, although slightly differently, about a passionate speech that Johnson made to the other welfare supplicants in the room on his beliefs about the Bible and the flag. During the speech, his hands either touched or came near the flag.

Cooper testified that she had been told not to give commodities to anyone who was not a loyal American citizen: “I says, ‘Just to quiet the rumor, salute that flag.’ And he said he would die before he would, and turned to the people there and says, ‘You can’t get anything here unless you salute the flag. It don’t have eyes and can’t see, and has no ears and can’t hear, and no mouth and can’t talk,’ and says, ‘It doesn’t mean anything to me. It is only a rag.’” She told Johnson he could not talk that way in the courthouse and said he had to leave. He did.

The jury convicted Johnson of desecrating the flag. He was fined fifty dollars and sentenced to twenty-four hours in jail, which was less than the maximum penalty under the law. His lawyers appealed to the state Supreme Court, which upheld his conviction, five to two. Both the majority opinion by Justice J. Seaborn Holt and the dissent by Chief Justice Griffin Smith—joined by Justice Tom M. Mehaffy—were windy and soaring flights of patriotism that quoted the Founding Fathers and judicial saints.

At the time of the Court’s decision, June 1942, the law of the land—the 1940 U.S. Supreme Court decision in Minersville School District v. Gobitis (310 U.S. 586)—seemed to support Holt and the majority. The Minersville school district in Pennsylvania had expelled two siblings, age ten and twelve, for refusing to salute the flag. Justice Holt quoted from the opinion by Justice Felix Frankfurter in the Minersville case upholding the expelling of the two: “…the flag is the symbol of our national unity, transcending all national differences, however large, within the framework of the Constitution.” Frankfurter concluded: “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…”

Chief Justice Smith’s dissent matched the majority’s patriotic rhetoric and citations from great Americans. He recalled the great American battles of World War I—Chateau-Thierry, Vaux, Belleau Wood, Argonne plateaus—and quoted Presidents James Madison, Woodrow Wilson, and Franklin Roosevelt, as well as Attorney General Francis Biddle, the natural-rights philosopher John Stuart Mill, Supreme Court justice Oliver Wendell Holmes, and federal judge John J. Parker.

Contrary to the majority’s view, Smith wrote, the farmer had not exhibited contempt for the flag or the nation’s principles. His conduct at the courthouse that day was dictated entirely by his religious beliefs. The chief justice said Johnson’s religious beliefs, which were based upon phrases in Psalms, seemed to him to be “mawkish,” but to Johnson they were real. In spite of his own lack of sympathy for Johnson’s notions about religion, Smith said he had to consider what the current war against the Axis powers was all about: “[T]he fact remains that we are engaged not only in a war of men, machines, and materials, but in a contest wherein liberty may be lost if we succumb to the ideologies of those who enforce obedience through fear, and who would write loyalty with a bayonet.”

Johnson’s conviction was not appealed to the U.S. Supreme Court, or at least it was not reviewed by the high court. But two years later, in West Virginia Board of Education, et al., v. Barnette, et al., the U.S. Supreme Court reversed the law that it had established in the Minersville case of 1940 and, in so doing, also invalidated the Johnson v. State ruling. Following the Minersville decision, West Virginia had adopted mandatory curricular changes for public and private schools that required honoring the flag in all classrooms and making children’s refusal to salute the flag an act of insubordination subject to punishment.

The Supreme Court’s majority opinion this time was written by Justice Robert H. Jackson, a former solicitor general and United States attorney general who after World War II would become the chief prosecutor of Nazi war criminals at Nuremberg. The decision specifically overruled the Minersville decision and all other precedents, whether by per curiam order or opinions. It embraced the arguments and rhetoric of Chief Justice Smith in Arkansas, although the Arkansas case was not explicitly referenced.

“If there is any fixed star in our constitutional constellation,” Justice Jackson 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. If there are any circumstances which permit an exception, they do not now occur to us….[C]ompelling the flag salute and pledge transcends constitutional limitations on [the government’s] power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

Justice Frankfurter wrote a stinging dissent, reiterating his arguments in the Minersville case. Two other justices who agreed with him on Minersville—Stanley F. Reed and Owen J. Roberts—joined him again.

For additional information:
Fox, Rebecca Huss. “Johnson v. State: God, Country, and Joe Johnson.” In First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays, edited by Stephen A. Smith. Fayetteville: University of Arkansas Press, 2016.

Ernest Dumas
Little Rock, Arkansas


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