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

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 managem ent 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, she lves, and lighting equipment are types of domestic fixtures. Ornamental fixtures include curtains, chimney grates, blinds, and beds fast ened 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 a LANDLORD AND TENANT in 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 PROPERTY rather 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIXTURE 469 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 ti tle 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 tenan t 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 tenanc y 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 the U.S. CODE govern 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 CONFEDERACY and 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 J ehovah’s Witnesses was challenged in Minersville School District v. Gobitis (310 U.S. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 470 FLAG 586, 60 S. Ct. 1010, 84 L. Ed. 1375 [1940]). In Gobitis, a father sued to enjoin the school district from prohibiting his children’satten- 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 FRANKFURTER said 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 membe rs 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 SPEECH and 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 the VIETNAM 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 in TEXAS 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FLAG 471 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 AMENDMENT protection. Addressing Texas’sclaim 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’sfreedomof 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? A fter 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 f ollowed. In January GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 472 FLAG 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 char ges, 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 RIGHTS groups, 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 invoke FIRST 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 the U.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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FLAG 473 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 expulsi on 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 since WORLD 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 474 FLAG SALUTE CASES 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. Justice FELIX FRANKFURTER,inhis majority opinion, rejected the idea that the freedom to follow religious conscien ce 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 d issenting 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 t o morals and the public safety, “but it is a long step, an d one which I a m unable to take, to the position that govern- ment may, as a supposed e ducational m easure andasameansofdiscipliningtheyoung, compel public affirmations which violate their religious conscience.” The U.S. entry into WORLD WAR II after the Japanese attack on Pearl Harbor on Dec ember 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 salut e the flag or to recite the Pledge of Allegiance. In addition, a number of parents had been prose- cuted for al lowing the ir 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 poli tical 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FLAG SALUTE CASES 475 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 Flet cher 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 legislat ors 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 previo us 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 a CIRCUIT COURT found 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 476 FLAGRANTE DELICTO 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 specula tors, 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOLLOW 477 v FOLTZ, CLARA SHORTRIDGE Clara Shortridge Foltz has been called Califor- nia’s First Woman. The first w oman 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 deputy DISTRICT ATTORNEY in 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 purpose s 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 of CIVIL 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 Clara Shortridge Foltz 1849–1934 ▼▼ ▼▼ 18501850 19251925 19001900 18751875 ❖ ❖ 1849 Born, New Lisbon, Henry County, Ind. 1861–65 U.S. Civil War ◆ 1875 Foltz and Shortridge families moved to San Jose, Calif. ◆ ◆ ◆ ◆ 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 ◆ 1911 Women won the right to vote in California; Foltz began service as first woman deputy district attorney ◆ 1914–18 World War I 1916–18 Published New American Woman magazine 1921 California passed statewide public defender bill 1934 Died, Los Angeles, California ◆ 1934 Florence Allen appointed to 7th Circuit, became first woman federal judge GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 478 FOLTZ, CLARA SHORTRIDGE . a result of their expulsion, their father had to pay for them to enroll in a private school. Their parents filed a lawsuit, claiming GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 47 4 FLAG SALUTE. approval of three-fourths of the states. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FLAG SALUTE CASES 47 5 Justice Jackson observed that the Founding Fathers “set up government by consent of the governed,. property. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIXTURE 46 9 Time of Removal If a trade fixture is not removed from the premises within the period specified in the lease, it becomes part of