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: "To affirm that the freedom to follow conscience," Frankfurter wrote, "has itself no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration (25)."
The Minersville decision finds that national unity is an interest "inferior to none in the hierarchy of legal values (26)," because national unity is the basis for natural security and the guarantee of liberty. Frankfurter undertakes to clarify the obscure nature of the national spirit:
"The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution. This Court has had occasion to say that … \'it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression (26).\'”
Frankfurter in this way reduced the active issue to whether a governmental authority was justified in determining appropriate methods to evoke and recognize the glorious and liberating national sentiment (28). The answer, of course, was yes; that governments were most certainly justified, as long as restriction was accomplished in the service of liberty. Frankfurter went on:
"Except where the transgression of Constitutional liberty is too plain for argument, personal freedom is best maintained -- so long as the remedial channels of the democratic process remain open and unobstructed -- when it is ingrained in a people\'s habits and not enforced against popular policy by the coercion of adjudicated law (28)."
In the wake of the Minersville Decision, the West Virginia legislature passed a law requiring all schools to incorporate history and other civic-minded courses into their curriculum (30). The patriotism was short-lived, however, for on June 14, 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette (31), which effectively overturned Minersville, despite the objections of the still-sitting Frankfurter. The original suit by Walter Barnette and others sought an injunction to restrain schools from requiring students to salute the flag. The injunction was granted by decree and affirmed by the Court, citing the due process and equal protection clauses of the Fourteenth Amendment (32).
Before delving into its analysis of the case and a critique of the reasoning behind Gobitis, the Court noted that the forbidden behavior, refusing to salute the flag, was orderly and peaceful and did not in any way impinge upon the rights of other students or their ability to comply or disobey (31). Recognizing that the standard of "clear and present danger" was not in this case applicable, Justice Jackson removed the legal analysis from the arena of national security and self-preservation into which