According to “Freedom of Speech” by Gerald Leinwand, Abraham Lincoln once asked, “Must a government, of necessity, be too strong for the liberties of its people, or too weak to maintain its own existence (7)?” This question is particularly appropriate when considering what is perhaps the most sacred of all our Constitutionally guaranteed rights, freedom of expression. Lincoln knew well the potential dangers of expression, having steered the Union through the bitterly divisive Civil War, but he held the Constitution dear enough to protect its promises whenever possible (8).
Issues of censorship in public schools are contests between the exercise of discretion and the exercise of a Constitutional right. The law must reconcile conflicting claims of liberty and authority, as expressed by Supreme Court Justice Felix Frankfurter in Minersville School District v. Gobitis, 1940 in “Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries” by Herbert N. Foerstel (23).
Minersville provides a very interesting backdrop to subsequent cases with graver overtones of censorship. The Minersville case was brought by the father of Lillian and William Gobitis, on their behalf, against the public schools of Minersville, Pennsylvania. The Gobitis children, Jehovah's Witnesses, were brought up to believe that scripture forbade saluting a flag. They refused to observe the Pledge of Allegiance and were expelled from the public school system, forcing their father to enroll them in private schools (23-25).
Constitutionally, the case at first appears to be a rather one-sided violation of the First Amendment as incorporated through the Fourteenth. The court, however, was of a different opinion: "...
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...und the issue (173).
As the case in Illinois clearly demonstrates, concerns about the fundamental discrepancy between a government's authority and what that government's authority guarantees are still being resolved. Cases like Tinker still have meaning and relevance to the situations of today, but at the same time, the lesson of Slotterback and innumerable other cases is that precedent can be defied, that every new generation requires a new interpretation of the provisions and guarantees made in grand terms vague enough to allow just such reinterpretation. History shows that censorship can be unfolded into either prior restraint or public forum, the approach from liberty or the approach from authority. Judicial sympathies have swung from one to the other with some regularity. With an issue as contentious as this, we can safely expect they will continue to do so.
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