Tinker v. Des Moines

Summary

This is a landmark case establishing the boundaries of free speech in school. It sets a precedence that peaceful protest, without distracting the learning environment, is covered by the First Amendment, and that students have a right to protest which institutions can’t infringe. In the wake of Vietnam war, this proved to be a very important case, dictating the limits of what institutions can and can’t allow. It covers fashion statements and wearing of armbands, and that students don’t lose their First Amendment rights on school premises.

Oral Argument
Argued -> November 12, 1968
Decided -> Feb 24, 1969
Petitioner -> Tinker
Docket -> 21
Decided by Warren Court
About -> Freedom of Speech
Verdict -> Positive
Personal Opinon -> Agree

Tinker V. Des Moines | Oyez

Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students’ freedom of speech protections guaranteed by the First Amendment?

yes

Johnston’s Argument

Restriction of armbands infringes upon [[First Amendment]] rights. As long as the expression doesn’t cause disturbances, they should be allowed to express themselves as they see fit. One of the mistakes the school board does is that they took measures to restrict the action before the action even commenced. The prevented the freedom of expression before knowing whether that expression would cause disturbance or not. Furthermore, it’s clear that the school board wasn’t interested in mitigating and preventing disturbances in classroom. Indeed, other symbols of support and protest—for example, presidential candidates—seemed to have been allowed. Students shouldn’t have to lose their 1st amendment rights when they enter school, and school shouldn’t be exempt from the amendment. Actually, schools should be expected to encourage freedom of expression and differing opinion as it’s they future of a nation. Johnston also argues that though a lot depends on context, fashion statements are also protected by first amendment rights. Well, wearing black armbands itself is a fashion statement, but Johnston further argues that hairstyle and such should also be protected under first amendment. He also points out that you can’t just “anticipate” violence and ban certain types of speech. It’s not the speech that you should ban, but discipline those who instigate violence.

Herrick’s Response

It was a very incoherent response and points were repeated time and again. The response can be boiled down to 2 basic points:

1. The school board shouldn’t have to wait until disturbances actually occurred to prevent certain speech or expression.
2. The school board has the right to prevent expressions on it’s discretion if it deems an expression to be inflammatory.

I kind of agree with the first point. But these arguments are really slippery. The problem of the second point is not that the school board is allowed to prevent certain inflammatory expressions, it’s that the school board can decide which expressions are inflammatory. This has huge repercussions not only in schools but in national level too. Same argument can be made against free speech itself. You could easily say “the government should have to right to restrict certain inflammatory expression which can cause public disturbances.” But you can’t make that argument as you’re ultimately giving government the right to decide which expressions are inflammatory. There were many other arguments but all of them incoherent.

Johnston’s Rebuttal

A very succinct rebuttal which address every point raised by Herrick, including other points. Most notably, Johnston here introduces the “[[Fourteenth Amendment]] Reasonability Test” and how it doesn’t apply to this case due to the introduction of 1^st Amendment rights. The school can’t infringe upon 1^st Amendment rights simply because it feels like it. Des Moines also exceeded its capacity and rights and directly infringed the first amendment. Furthermore, in this specific case, there isn’t sufficient proof of disruption of educational environment in the school. Also, the policy of school may infringe the equal protection clause of the 14^th amendment as it doesn’t prohibit signs displaying support for political candidates.

Analysis of the Opinion of the Court

Justice Fortas presents the opinion on the court which reflects some of the reasons for decision of the court in this specific case, and the over-arching implication of such a ruling. Specifically, Fortas points out that the possibility of violence or disturbance is not enough to justify prohibition of certain speech. There needs to be rigorous reasoning and reasonable justification to justify the fear of impending violence. Furthermore, he points out that any speech or expression holds the capacity to incite disturbance: opinion about some teacher, opinion regarding certain foods. Therefore, it’s unconstitutional for the School Board to prohibit black arm bands. Also, the law was discriminatory. It singled out a single expression from the rest and prohibited it.

Fortas also writes about the importance of freedom of expression and though especially in school. If we talk high and mighty about the first amendment just to restrict certain speech for fear of disturbance, that principal also exists as an ideal. If we restrict certain expression in schools, we’re teaching our future citizens to regard these values as nothing more than bendable principles.

However, he concedes that if certain speech or expression does cause disturbance or infringes other’s rights, it can be forbidden.

([[Tinker-v-Desmoines-Opionion-of-the-court.pdf#page=4&selection=7,20,9,43&color=note|Tinker-v-Desmoines-Opionion-of-the-court, p.4]]) undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression

([[Tinker-v-Desmoines-Opionion-of-the-court.pdf#page=5&selection=51,14,55,49&color=note|Tinker-v-Desmoines-Opionion-of-the-court, p.5]]) In our system, students may not be regarded as closed-­‐circuit recipients of only that which the State chooses to communicate.

Analysis of Dissenting Opinion

Justice Black’s dissent is a very good read on what an individual wants to do and what a judge must do. Justice Black’s point is not that the students were wrong to demand free speech or even things relating to free speech—at least that wasn’t the main argument. The argument is that with this decision the court takes upon itself the role to dictate when a certain speech is barred due to potential disturbance rather than the school officials. Furthermore, Justice Black argues that though free speech is inalienable, there is a time and place for free speech, and that one can’t go freely exercising his/her first amendment rights anywhere.

I, however, disagree with Justice Black. Such reasoning can quickly lead to slippery slope situations where a nation (or public school—emphasis on public) has the right to bar citizens from exercising their first amendment rights by allocating certain time and place for it. That is no free speech. Furthermore, Justice Fortas rebuts this argument fantastically. It’s Justice Black’s view that schools have a “singular” purpose of teaching students and that students’ only job is to learn. He however discounts the fact that discussing politics is very much learning. As Justice Fortas expounds, if we don’t instill in our students that first amendment rights—and all rights for that matter—are very real and tangible and not some easily dis-countable principal. Also, Justice

Black’s dissenting opinion feels like he is writing from the perspective of precedence and not the specificity of that particular case. Justice Black’s opinion talks about how this decision will cause students to be unruly and argue with the adults over how to run educational institution, but his piece doesn’t really address the case of John Tinker et. al. At Des Moines, the ban on arm-bands was obviously unconstitutional. Through the lens of the fourteenth amendment, the school discriminatory outlawed only arm-bands and not other political insignia such as buttons expression preference for certain political candidates. The school board’s decision is to shut down discussions about the war.

Justice Black also talks about the “reasonability test” and how that is not a good measure for deciding which laws are constitutional. He argues that the reasonability test gives judges arbitrary power to shut down and remove laws simply because the court “feels like it.”

Further Law

([[Tinker-v-Desmoines-Opionion-of-the-court.pdf#page=3&selection=56,0,66,82&color=important|Tinker-v-Desmoines-Opionion-of-the-court, p.3]]) The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, [508] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”

([[Tinker-v-Desmoines-Opionion-of-the-court.pdf#page=4&selection=17,61,19,65&color=note|Tinker-v-Desmoines-Opionion-of-the-court, p.4]]) But our Constitution says we must take this risk, [[Terminiello v. Chicago]], 337 U.S. 1 (1949)

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