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?" 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.

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, 1940.¹

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 saluting a flag was forbidden by scripture. 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.

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." ²

The Minersville decision finds that national unity is an interest "inferior to none in the hierarchy of legal values," because national unity is the basis for natural security and the guarantee of liberty. Frankfurter undertakes to elucidate the elusive nature of the national spirit:

Frankfurter in this way reduced the operative issue to whether a governmental authority was justified in determining appropriate methods to evoke and recognize the glorious and liberating national sentiment. 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:

Frankfurter and the Court reversed the decision of the Third Circuit Court of Appeals which granted the Gobitises an injunction against the school district. Lillian and William Gobitis entered in upon a private education.

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 curricula. The patriotism was short-lived, however, for on June 14, 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette,⁵ 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 decree⁶ and affirmed by the Court, citing the due process and equal protection clauses of the Fourteenth Amendment.

Before delving into its analysis of the case and a critique of the reasoning behind Gobitis, the Court noted that the procribed 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. 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 Frankfurter had wandered. "It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence," Jackson wrote.⁷ As the silence of the protesters did not in any way inhibit the expression the participants, the urgency did not exist.

Jackson took the added measure of refuting the claim upon which Frankfurter's opinion rested: "Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support."⁸ He took further issue with the idea in Gobitis that intercession of the Court in matters of local authority would violate the School Board's authority in the case. Barnette countered that the Constitution is to protect citizens from local, in addition to federal, government. Barnette declared that the flag-salute requirement undermines the central purpose of the Bill of Rights itself, which was designed "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." ⁹

Jackson's statement in Barnette significantly contrasts with the mentality driving the Gobitis decision. Frankfurter argued that liberty, in general, was secondary to the ultimate authority of the legal power which guaranteed it. Jackson, however, attempted to understand the intent and the spirit of the Constitution's framers.

He maintained that while nationalism of the sort Frankfurter advocated was a relatively recent phenomenon, similar efforts to "compel coherence," such as the Roman attempt to exterminate Christianity and the Spanish Inquisition, ended uniformly in failure. He wrote, memorably, "compulsory unification of opinion achieves only the unanimity of the graveyard."¹⁰

Major conflicts of expression and authority in public forums, if they existed, did not again populate the Supreme Court docket for another twenty years or so. With the outbreak of a considerably less popular war in Vietnam, though, protests began to boil over. Racial debates, which characterized the 1950s, also became more pronounced and public.

On July 21, 1966, Circuit Court of Appeals Judge Gewin affirmed District Court Judge William Harold Cox's order, denying an injunction requested by Blackwell and appellants in Blackwell v. Issaquena County Board of Education.¹¹ The injunction they sought would have prevented school officials in Issaquena County, Mississippi, from enforcing regulations forbidding the wearing of buttons by students.

The Blackwell case arises from a 1965 effort by students at the segregated, all-black Henry Weathers High School in Issaquena County. On January 29, some 30 students came to school wearing "freedom buttons," which depicted black and white hands clasped above the letters "SNCC," for the Student Non-violent Coordinating Committee, a civil rights activist group. When a number of the students in question began talking noisily in the hallways during class time, three were brought to the principal's office for creating a disturbance. The principal there told them that they were to remove their buttons.

In response, approximately 150 students wore the buttons to school the following Monday, distributing similar buttons freely and also pinning them on students who had not requested one.

This activity created a state of confusion, disrupted class instruction and resulted in a general breakdown of orderly discipline, causing the principal to assemble the students in the cafeteria and inform them that they were forbidden to wear the buttons at school. At the assembly and also during conferences with the students immediately thereafter, several students conducted themselves discourteously and displayed an attitude of hostility.¹²

Over 200 students returned to school wearing the buttons the next day and were informed that refusal to remove the buttons would result in suspension. The following day, February 3, students wearing the buttons were immediately sent home, but many went into classrooms to petition other students before leaving. Disturbances and distributions continued throughout the week, and the number of suspended students eventually reached 300. Parents of the children met with the Principal and Superintendent, but those students who remained at home after 20 days were suspended for the rest of the school year.

On May 17, the district judge denied a request for an injunction to compel the school board to admit the students and allow them to wear the buttons as long as no disturbance was caused. The case reached the Fifth Circuit Court on appeal, and was handed down simultaneously with Burnside et al. v. Byars,¹³ a case similarly based on a question of freedom of speech and expression.

In the Burnside case, the wearing of buttons by students had created no noticeable disturbance, yet been banned regardless. The Circuit Court overturned a lower court's decision to uphold a school regulation prohibiting the wearing of buttons, finding the regulation "an infringement upon students' protected right of free expression"¹⁴. In Blackwell, however, the court had clear-cut evidence that the wearing and distribution of buttons was disruptive and potentially discourteous behavior. Gewin, by handing down the two decisions simultaneously, was able to make a highly significant distinction between the applicability of Constitutional right in the two cases. Analysis of such "right," must, he noted, be made on a case-by-case basis. In Burnside, there was no Constitutional conflict: The right of expression exercised by the button-wearing students did not in any way impinge upon the rights and security of any others. Blackwell was quite another story, because not only did the expression of some certain students violate the privacy and physical security of others, but it also interfered with the purpose and operation of a public school, effectively a Constitutionally ordained body, by the "establishment clause" of the First Amendment.

It was this distinction that allowed Gewin to assert that the First Amendment does not confer "an absolute right to speak" and that "the law recognizes that there can be an abuse of such freedom" ¹⁵. In Blackwell, the school's state-sanctioned function vested it with the power to adjudicate Constitutional freedoms within its own walls, in the following manner:

It is highly important to note that the decision handed down in Blackwell did not in any way negate, deny or diminish the students' Constitutional right to freedom of expression; it recognized that the school was empowered to qualify the Constitutional guarantee when its own best interests and its own mission were jeopardized.

The conflict of establishment and free speech was again considered and in many ways clarified by the May, 1991, decision of a Pennsylvania District Court in the case of Slotterback v. Interboro School District.¹⁷ The principal litigant in the case, Scott Slotterback, distributed Christian religious tracts bearing witness to the Christian faith over 40 times between November, 1989, and May, 1990 -- in school hallways, the cafeteria and, on one occasion, a classroom. Some teachers complained that the fliers and booklets Slotterback passed out were littering the hallways, and objections increased when students allegedly began obstructing the hallways between class periods. Interboro Senior High School (ISHS) Principal Nicholas Cianci resolved that Slotterback would be permitted to distribute his materials only twice more during the school year, could occur only around the building's exit doors and would have to occur after school hours without "argument, fight or litter."¹⁸

Between April and June of 1990, the school district developed a new procedure policy for non-school written materials, which stated that the content and dates of distribution of all publications had to be approved in advance by the principal. Slotterback nevertheless continued to pass out his fliers and booklets, without apparent disruption of the school curriculum. He also registered a legal action stating that the requirements of the school's notification policy represented unconstitutional prior restraints. The school, in its defense, invoked the lessons of Blackwell, claiming its policy represented only the minimum regulation necessary to maintain a functional education environment.

The court's reasoning in the case's final disposition draws heavily from a field of law referred to as "forum analysis." There is much case law debating the concept of forum analysis; not all of it, obviously, is relevant here or otherwise especially useful. The cornerstone case of most forum analysis is Tinker V. Des Moines Independent Community School District, 1969.¹⁹ Tinker, which reached the Supreme Court, involved a high school student and his younger sister, who wore black arm bands into school in protest of the Vietnam War. The principals of the students' respective schools adopted policies threatening students who wore such arm bands with suspension. The Tinker children defied the policy and were suspended.

The Supreme Court's decision maintained that school authorities did not have sufficient reason to anticipate that the wearing of the arm bands would become a disturbance or a disruption and upheld the primacy of the students' first amendment rights. Tinker did not explicitly establish the school as either a public or non-public forum, but the decision did advocate the accommodation of "personal intercommunication among the students" and emphasized that school grounds could not be construed as private property. Another important distinction would be made in 1988 when the court handed down Kuhlmeier v. Hazelwood, but Tinker stood as the benchmark forum analysis for twenty years.

The Slotterback decision went on to discuss "traditional public fora," because ISHS was not a "quintessential" public forum, the court attempted to categorize the high school by governmental intent -- that is, whether a public school was ever meant as a place of public assembly; and access, or whether the property is open and available to an interested party. Even a "limited public forum" is subject to the same definition and construction as a public forum, but absent government intent and wide public access, could not be considered as such. Tinker and the rest of the body of standing forum analysis were thereby ruled irrelevant to Slotterback.

Accordingly, the court returned to "governmental interest," or whether the particular resolutions passed by the defendant school district were indeed the minimum strictures necessary to preserve governmental interest. The district defended a content-based ban on "material(s) that proselytizes a particular religious or political belief" on the grounds it was providing an "educational" environment and avoiding establishment or church-state problems. The court countered by challenging the interpretation of education: "[A] public secondary school environment is not fully 'educational' where students' personal intercommunication is restricted to particular issues. Such restrictions stunt the growth of budding citizens and budding minds and are invalid absent a legitimate Constitutional justification."²⁰

What makes Slotterback significant as a landmark case in censorship law is the court's final area of analysis: the content-neutral regulations requiring advance approval of material by the high school principal. The Supreme Court had already identified the perils of such prior restraint. The first is that "unbridled discretion" can lead directly to censorship; the second, more indirect, is that the absence of an established time constraint on the designated official's decision cannot be permitted. The court therefore ruled that the regulations in question "facially invalid." Allowing distribution only at the exit doors, the court said, and not at other locations during clearly non-school hours represented a violation of the spirit of narrow tailoring and were in this way unjustifiable.

Slotterback antedated the decision in Hazelwood School District et al. v. Cathy Kuhlmeier et al.²¹ by almost three years, but the latter remains the holy grail of school censorship. The Hazelwood decision was the Supreme Court's January 13, 1988 ruling that the staff members of a high school newspaper had not had their First Amendment rights violated when their publication was censored. In writing the majority decision, Justice White dealt with two questions: whether the high school paper in question could qualify as a public forum and, then, whether the high school principal's decision -- to excise two pages from the newspaper on ground that the articles impinged on privacy rights -- itself violated the speech rights of the publishing students.

The newspaper at the Hazelwood East High School was produced by a journalism class and part of the school's curriculum. The newspaper was published roughly every three weeks and distributed to school personnel, members of the community and to students. The cost of supplies, textbooks and the journalism teacher's salary, as well as over 75% of the printing expenses, were borne by the Hazelwood District Board of Education.

Practice held that the teacher in charge of the paper submitted page proofs to the principal for approval, and when the students wrote a story detailing the influence of pregnancy and divorce on their classmates at school, the principal excised content from the paper. His stated reasons were that the pregnant students, though not named, could be identified from the text, violating their privacy rights; that the divorce article named a student who complained about her father, while the father had neither given nor his consent nor been given an equal opportunity to respond; and that the discussion of sexual activity and birth control were inappropriate for some of the school's younger students. Finally, believing "that there was no time to make necessary changes in the articles in the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages." ²²

The Court set Hazelwood immediately apart from Tinker by elaborating the distinction between student expression that occurs on school premises and expression within a specific forum, the dissemination of which the school has elected to support. "Educators do not offend the First Amendment," White wrote, "by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."²³ In exploring the bounds of reasonability, the Court took from Issaquena that schools are not expected to protect expression that undermines or threatens its educational mission, even though such expression could be tolerated outside the school environment.

Just like Slotterback three years later, the Hazelwood decision predicates a large part of its reasoning on forum analysis. In the judgment of the Court, the school and more importantly the school newspaper are not public fora, because school officials "did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally."

The Supreme Court's decision overturned the Court of Appeals, which had found that nothing within the articles could have been reasonably foreseen to cause a disturbance, and, likewise, there was nothing which could have resulted in tort liability to the school. Prior restraint, therefore, was impermissible, and the Court ruled in favor of the plaintiff students. The Supreme Court took the other approach to the case, taking from Perry Education Association v. Perry Local Educators' Association, and asserted that school facilities should be considered public fora only if school authorities have made the facilities open "for indiscriminate use by the general public" ²¹ or by a segment of the public, such as a student organization. The journalism course the students entered was part of the curriculum, subject to supervision and control by levels of administrative authority from the teacher who ran the course up to the Board of Education that funded it. Any claim that the paper could be considered a public forum was consequently invalid. If nothing else, the Court concluded, the newspaper's existence as a part of the high school's curriculum gave the principal or the teacher the ability to conclude that the student publishers simply had not learned their lessons well enough and could send them back to the drawing board.

In 1994, the students at Naperville Central High School provided an interesting historical footnote to the Hazelwood case. The students' expose this time focused not on student life but rather on the misappropriation of funds by district administrators. As they were about to go to press with the names of three district principals and one administrator who each spent over $1000 attending professional conferences, NCHS principal Tom Paulsen directed the students to remove the administrators' names. Paulsen justified his actions with an invocation of the language used by the Supreme Court in many of its decisions. "My concern," he said, "was that there may have been an appearance that these administrators did something wrong and that would affect their ability to lead."²⁴

The Hazelwood decision precipitated a new wave of controversy over the ambiguousness of the definition of a school's "basic educational mission," and many states have, in a form of response, passed laws limiting the ability of administrators to censor or oversee high school journalism.

In 1997, the Illinois State legislature passed House Bill 154, which would have allowed censorship only, according to Illinois Governor Jim Edgar, "if it is libelous, obscene or harmful to minors, an unwarranted invasion of privacy, or an expression which causes imminent lawless action." Edgar vetoed the bill because it prevented the school board, "the entity ultimately held responsible for the newspaper," to exercise full control over its content. Edgar noted judiciously that the effect of the bill would be "to establish that in Illinois, high school newspapers are public fora," and that the resultant discrepancy between federal and state law would only further confound the issue.

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 Hazelwood and 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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