Cases mentioned in this episode:

• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
• Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
• Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) 
• Morse v. Frederick 551 U.S. 393 (2007)Mahanoy Area School District v. B.L. 141 S. Ct. 2038 (2021)   

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

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We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.

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And now here is your host, Stephen Rohde, with our episode: Students and the First Amendment.

00:00:55 Stephen Rohde: 

On December 16 and 17, 1965, with the war in Vietnam raging, 13-year-old Mary Beth  Tinker, her 15-year-old brother John, and 16-year-old Christopher Eckhardt all went to their junior and senior high schools in Des Moines, Iowa, wearing black armbands. All three students were silently signifying their objections to U.S. involvement in Vietnam and their support for a truce.

00:01:30

But the Principals of the Des Moines public schools had gotten wind of the students’ plans and two days earlier had quickly adopted a new policy that if any student was asked to remove an arm band and refused, they would be suspended. Mary Beth, John, and Christopher were all asked, they refused, and they were suspended. The parents of the three students sued the Des Moines Independent Community School District. After an evidentiary hearing, the U.S. District Court dismissed the lawsuit. It upheld the constitutionality of school officials’ actions on the ground that it was reasonable in order to prevent disruption of school discipline.

00:02:20

The Court of Appeals for the Eighth Circuit was equally divided, and therefore the District Court decision was affirmed without the Court issuing an opinion. The parents appealed to the U.S. Supreme Court. On February 24, 1969, the Court in a 7-to-2 decision announced its historic opinion: the students won. Mr. Justice Abe Fortas delivered the opinion of the Court. 

00:02:52

He pointed out that even the District Court had recognized that wearing an armband for the purpose of expressing political views is the type of symbolic act that is within the free speech clause of the First Amendment. And the District Judge conceded that “the wearing of arm bands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it.” In fact, he wrote that the armbands were “closely akin to pure speech which was entitled to comprehensive protection under the First Amendment.” However, the District Judge ruled against the students in deference to the school authorities.

00:03:46

Given those premises, Justice Fortas took the opportunity to elaborate on the First Amendment rights enjoyed by both teachers and students, a subject very relevant today. In the phrase that the Tinker case has come to be best known for, Justice Brennen wrote that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court cited its decisions from 1923 that the Constitution prevents states from forbidding the teaching of a foreign language to young students because such restrictions interfere with the liberty of teacher, student, and parent.

00:04:39

Key to the Tinker Decision was the historic 1943 ruling in West Virginia v. Barnette. In that case the court held that under the First Amendment students in public schools may not be compelled to salute the American flag. There, Justice Robert Jackson acknowledged that school boards have “important, delicate, and highly-discretionary functions, but none that may not be performed within the limits of the Bill of Rights.” Justice Roberts had pointed out that the very fact that school officials “are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual.” Otherwise we would “strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” 

00:05:48 

Justice Fortas and Tinker focused on the facts of the case. “The school officials banned or sought to punish the students for a silent passive expression of opinion unaccompanied by any disorder or disturbance” on their part. There was no evidence whatsoever of the students’ “interference, actual or nascent, with the school’s work, or of collision with the rights of other students to be secure and to be let alone.” Outside the classroom a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

00:06:33

The District Court had concluded that the actions of the school authorities were reasonable because it was based upon their fear that the students wearing armbands could cause a disruption. But Justice Fortas wrote that “[i]n our system undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

This has become an important principle in First Amendment law. It’s far too easy for officials to merely claim that they fear disruption in order to justify restrictions on free speech, but in Tinker the Supreme Court took a more skeptical attitude toward the motivations of government officials. It also took a more realistic attitude about what it means to live in the rough and tumble of a modern society in which a wide variety of opinions must be tolerated. Justice Fortas pointed out that “[a]ny departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken in class in the classroom or on the campus may deviate from views of another person and may start an argument or cause a disruption.”

00:08:05 

But that is to be expected in a highly-diverse society. As he put it, “[o]ur Constitution says that we must take this risk, and our history says that it is this sort of hazardous freedom, this kind of openness that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society.”

00:08:38

In such a society for school officials to justify prohibition of a particular expression of opinion, they must prove more than a mere desire to avoid, as Justice Fortas put it, “the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The Des Moines officials failed to prove that just wearing armbands would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Instead, Justice Fortas found that “[t]he action of the school authorities appears to have been based on an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands of opposition to the nation’s part in the conflagration in Vietnam.”

00:09:40

In an equally important conclusion, Justice Fortas found that these particular students had been singled out for their particular political viewpoints. Other students wore a button relating to national political campaigns, and some even wore the iron cross, traditionally a symbol of Nazism. But the school board’s hastily-written rule prohibited the wearing of armbands and it did not extend to these other items. Instead, a particular symbol, black armbands worn to exhibit opposition to this nation’s involvement in Vietnam, was singled out for prohibition. Clearly, Justice Fortas wrote, “[t]he prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with school work or discipline, is not constitutionally permissible.

00:10:47

Justice Fortas was making two very important points in First Amendment law. First, that the government cannot play favorites, allowing some viewpoints on an issue but punishing contrary viewpoints. And second, the government cannot impose a single official dogma on controversial issues. As Justice Fortas put it, “[i]n our system, state operated-schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”

00:11:45

Drawing particular attention to the role of education in American society, Justice Fortas quoted an earlier decision which held that “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is particularly the marketplace of ideas. The nation’s future depends on leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues rather than through any kind of authoritative selection.”

00:12:23

Justice Fortas concluded his majority opinion by reiterating several fundamental First Amendment pri-principlesprincipals which are worth quoting in full. “Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress and the states may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully-restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth, or the four corners of a pamphlet, or to supervised or ordained discussion in the school classroom.”

00:13:35

But the Tinker decision was not unanimous and we need to study dissenting opinions in this field because any decision of the Supreme Court can be reversed if former dissenters gather enough votes to build a new majority. It was Justice Hugo Black who has generally been seen as a defender of the First Amendment in most other areas, who wrote a rather testy dissent. As he restated the facts of the case, he appeared to cast dispersions on the parents of the students involved. He described the father of Mary Beth and John Tinker as a “Methodist minister without a church” who is “paid a salary by the American Friends Service Committee,”  as if that had anything to do with the Constitutional issues in the case. And he identified Christopher Eckhardt’s mother as an official in the Women’s International League for Peace and Freedom.

00:14:42

Justice Black assumed that the court was correct that in general wearing armbands for the purpose of conveying political ideas is protected by the First Amendment, but he framed the crucial remaining questions as whether students or teachers may use schools at what he called “their whim” as a platform for the exercise of free speech, and whether “the courts will allocate to themselves the function of deciding how the pupils’ school day will be spent.” 

00:15:21 

He claimed that “[e]ven a casual reading of the record shows that this armband did divert students’ minds from their regular lessons and that talk, comments, etcetera made by John Tinker’s self-conscious in attending school with his armband, while the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court’s statement that a few armbanded students did not actually disrupt the classroom, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly-emotional subject of the Vietnam war. 

00:16:17 

And I repeat that if the time has come when pupils of State-sponsored schools, kindergartens, grammar schools, or high schools can defy or flaunt and flout orders of school officials to keep their minds on their schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.” He viewed the rule of schools and students much differently than Justice Fortas and six other justices did.

00:16:57

In Justice’s Black opinion, public school students are not sent to school, in his words, “at public expense to broadcast political or any other views to educate and inform the public, the original idea of schools was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the nation has outworn the old-fashioned slogan that children are to be seen and not heard, but one may, I hope, be permitted to harbor the thought that taxpayers sent children to school on the premise that at their age they need to learn, not teach.”

00:17:45

He claimed that somehow the fact that there was a raging national debate over the Vietnam war actually worked against the students. He wrote that “[e]ven if the record was silent as to protests against the Vietnam war distracting students from their assigned classwork, members of this Court like all other citizens know without being told that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have.”

00:18:20

Justice Black was saying that even if the black armbands were not causing any disruption in the Des Moines schools, the fact that a national debate over Vietnam was dividing the country justified suspending the students. Obviously disrupted by the division of the country, Justice Black yearned for the past. He wrote that “[c]hange has been said to be truly the law of life, but sometimes the old and the tired and true are worth holding. The schools of this nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled or uncontrollable liberty is an enemy to domestic peace.”

00:19:11

He did not pause to explain how these three students silently wearing black armbands amounted to “uncontrolled or uncontrollable liberty.” As he concluded his angry dissent, Justice Brennen let loose with his worst fears of the dystopian world that these three students wearing black armbands would create. He called it “[n]othing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the school rather than the right of the states that collect the taxes to hire the teachers for the benefit of the pupils.” He warned that upholding the students’ rights “subjects all of the public schools in the country to the whims and caprices of their loudest mouths, but maybe not their brightest students.” 

00:20:09

He concluded that the Federal Constitution does not compel “the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.”

00:20:26

Tinker remains good law today, but subsequent Supreme Court decisions have sometimes limited the broad scope of that ruling depending on the facts in each particular case. The Court has given school officials considerable leeway to regulate student speech with respect to curriculum matters or where student expression takes place in a school-sponsored setting, such as a school assembly in the case of Bethel School District v. Fraser in 1986, or a school newspaper in Hazelwood School District v. Kuhlmeier in 1988.

00:21:08

In 2007 in Morse v. Frederick, the Court carved out an unusual exception to Tinker. Joseph Frederick, an 18-year-old high school student in Alaska, unfurled a 14-foot banner with the message “Bong Hits 4 Jesus” at the Winter Olympics torch relay passed by a public street near his school. Frederick had skipped school that day intent on displaying his message before television cameras. He claimed he picked this unusual message, not for any commentary on drugs or religion, but simply as a First Amendment experiment to test his free speech rights. 

00:21:57 

The school principal grabbed the banner and ordered Frederick to his office… to her office. She initially suspended him for five days, but after he quoted Thomas Jefferson‘s adage that speech limited is speech lost, she doubled his suspension to ten days. In a narrow five-to-four decision, the Supreme Court ruled that public school officials can prohibit student speech that officials reasonably believe promotes illegal drug use. 

00:22:31

More recently in 2021 the Supreme Court renewed its support for students’ First Amendment rights. The Court ruled that a school could not discipline a cheerleader who had posted on Snapchat a vulgar expression about not making the Varsity squad. This Court said in Mahanoy School District v. B.L. that the school’s regulatory interest was lessened in regulating the speech of students off campus and on social media, and that the cheerleader’s comment on Snapchat did not substantially disrupt school operation. 

00:23:15

The Tinker case is an important example of how the First Amendment over time has been expanded to protect groups of people, in this case junior and senior high school students whose rights had not been previously articulated, so long as the exercise of those rights do not involve the curriculum, do not take place in a school-sponsored setting, and do not impinge on rights of other students to a safe and undisturbed education. 

00:23:46 

It remains to be seen whether the United States Supreme Court will continue to uphold the broad and important protections afforded in the Tinker case.

00:24:01

Thanks so much for listening to this podcast. I want to thank Allison Whelan, my producer, and I want to invite you back to future episodes of Speaking Freely: a First Amendment podcast.