The evolution of the enforcement of First Amendment guarantees under the aegis of the Fourteenth is an interesting study in the throwing up of bridges before and the burning of them behind, characteristic of juridical-advance. The protection of property and of liberty of contract had long since been assured under decisions applying'the Fourteenth Amendment. The interests of a teacher and of a private school, challenging interference with their pursuits, were well calculated to furnish the span between proprietary and forensic rights. When the span was crossed the newly taken ground provided a new base for advance. Freedom of speech, recognized as a guaranteed interest in the Gitlow case, was not less to be preserved when it took the form of religious proselyting; and so, in turn, the protection of forensic religious activity led to the inclusion of religious nonobservance in the flag-salute cases; first, as in Gitlow, a recognition of the general right but its rejection in the special case, and then an acceptance by decision itself.
Paul A. Freund,
The Supreme Court and Civil Liberties,
4 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol4/iss3/6