Tinker, Take Two

Two legendary figures in the ongoing fight for student free speech rights are asking the Supreme Court to revisit this thorny area of First Amendment jurisprudence.

John and Mary Beth Tinker were petitioners forty-six years ago in Tinker v. Des Moines Indpt. Sch. Dist., 393 U.S. 503 (1969), the landmark case that established "[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." Then, as now, the Tinkers are asking the Court to decide how to honor First Amendment principles "in light of the special characteristics of the school environment." Id. at 506.

With the assistance of DWT and UCLA law professor Eugene Volokh, the Tinkers have submitted an amicus brief urging the Court to accept review in a current student speech case, Dariano v. Morgan Hill Unified School District. The Dariano case arose when some students wore American flag-themed shirts to school on May 5, 2010, while others at Live Oak High School observed "Cinco de Mayo" celebrating Mexican culture and heritage. Responding to comments that there might be "issues" or "problems" because of the shirts, school officials directed the students sporting the "flag" shirts to remove them, turn them inside out, or go home. Some students had exchanged profanities during a similar incident the previous year, but in 2010, no classes were delayed or interrupted because of the shirts, no violence occurred at the school, and there were no reports of actual disturbances. The students who wore the shirts made no threats, and were not disruptive. They did file a civil rights action, however, and the lower courts upheld the school's decision to restrict their silent demonstration. In doing so, the 9th Circuit said it was merely applying the Supreme Court's holding in Tinker.

That's what riled up John and Mary Beth Tinker. They could not reconcile the 9th Circuit's holding either with their own experience or with their understanding of what the Supreme Court held in their case. And so they decided to weigh in.

Past as Prologue

The Tinker case arose at the end of 1965 as the Vietnam War was becoming increasingly controversial. Although American involvement was still in its early stages, almost 2,000 U.S. soldiers had already died in the conflict, and another 6,000 would perish in the coming year. John, then fifteen years old, and his thirteen-year-old sister Mary Beth, an eighth-grader, decided to express their grief over the loss of life and to show support for a proposed Christmas truce by wearing black armbands to school.

Seven students in Des Moines participated in the silent protest despite the fact that the School Board in an emergency meeting had adopted a policy prohibiting the armbands. Five students who violated the policy were suspended from school, including John and Mary Beth Tinker, who, along with Christopher Eckhardt, challenged the ruling in court.

The Supreme Court concluded that "[i]n our system, state-operated schools may not be enclaves of totalitarianism." Tinker, 393 U.S. at 506, 511. In striking a balance between fundamental constitutional safeguards and the authority of school officials to "prescribe and control conduct in the schools," the Court held that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. at 507-08.

That decision, and the personal experiences that led to it, forged the Tinkers' lifelong commitment to promoting First Amendment values. John is the general manager of KPIP, a low-power community FM radio station in Fayette, Missouri. He is also the editor of Schema-Root.org, a web-based encyclopedia of current events. Each year, he corresponds with dozens of students who are working on school projects related to Tinker v. Des Moines, and several times each year, he speaks publicly in academic settings about the case.

Mary Beth Tinker has also been active on free speech issues, and in 2013-14 participated in a nationwide campaign to promote student rights known as the "Tinker Tour." She traveled more than 25,000 miles by bus and spoke to more than 20,000 students and teachers at over 100 stops that included schools, colleges, churches, youth detention facilities, courts, and several national conventions. The armband she wore in 1965 is on permanent display at the Newseum in Washington, D.C.

The Core Issue

In the forty-six years since Tinker was decided, school authorities and lower courts have struggled with understanding and applying it in the special circumstances of the school environment. This difficult balancing act has been rendered more difficult by the fact that, in this entire interval, the Supreme Court has not taken another case analyzing how to apply the relevant test to student political speech. Instead, it has decided cases involving lewd double entendre at a school assembly, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), editorial control of a school-sponsored newspaper, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), and a nonsensical banner ("Bong Hits 4 Jesus") at an event outside a school. Morse v. Frederick, 551 U.S. 393, 402-03 (2007). Dariano – like Tinker before it – squarely presents the Court with the problem of the "heckler's veto."

Many observers might sympathize with school administrators in Dariano who were merely trying to prevent a clash between students on Cinco de Mayo. But the core question is whether the constitutionally sound solution is to silence peaceful demonstrators in the face of potential threats. It is precisely the same issue the Court addressed in Tinker, where the simple act of wearing a black armband involved the risk of violent reaction over political expression.

The District Court in Tinker had refused to protect wearing armbands in school as a form of protest because "debate over the Viet Nam war had become vehement in many localities" and "individuals supporting the war and those opposing it were quite vocal in expressing their views." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 258 F. Supp. 971, 972-73 (S.D. Iowa 1966), aff'd, 383 F.2d 988 (8th Cir. 1967) (en banc), rev'd, 393 U.S. 503, 506 (1969). The court added that, "the reactions and comments from other students as a result of the armbands would be likely to disturb the disciplined atmosphere required for any classroom." Id. at 973.

For the Tinkers, the potential disturbance was not limited just to polite disagreement. One person telephoned their home on Christmas Eve and said "the house would be blown up by morning." See Ronald K.L. Collins & Sam Chaltain, We Must Not Be Afraid To Be Free 270, 277 (2011). A woman called for Mary Beth, and when the young teen got on the line, said, "Is this Mary Beth? … I'm going to kill you." Kelly Shackelford, Mary Beth and John Tinker and Tinker v. Des Moines: Opening the Schoolhouse Gates to First Amendment Freedom, 39 J. Sup. Ct. History 372, 378 (2014). The Tinkers received other threatening telephone calls as well. They also received hate mail, and their house was vandalized with red paint.

A local radio talk show host told his audience he would defend anyone who physically attacked Leonard Tinker, John and Mary Beth's father, who was a devoted pacifist. Id. As Justice Black noted, in school the Tinkers faced "warnings by other students" to the point that "an older football player" felt the need to "warn[]" "that other, non-protesting students had better let them alone." Tinker, 393 U.S. at 517 (Black, J., dissenting).

Despite such threats, the Supreme Court held the Tinker children's speech to be protected by the First Amendment. It was a classic application of the "heckler's veto" doctrine – one of the oldest and most venerable in First Amendment jurisprudence. The Court articulated the bedrock principle in Terminiello v. City of Chicago, 337 U.S. 1, 3-5 (1949), that danger from "angry and turbulent" hostile audiences cannot justify censorship. The ruling in Terminiello came a mere 13 years after the Supreme Court first began to regularly invalidate unconstitutional speech restrictions.

The Supreme Court has reaffirmed the "heckler's veto" principle on many occasions since then, holding that First Amendment rights cannot be curtailed "simply because of hostility to their assertion or exercise." Cox v. Louisiana, 379 U.S. 536, 551 (1965). "[T]he possible tendency of … words to provoke violent retaliation" (setting aside the narrow zone of "fight¬ing words") cannot justify restricting such speech. Street v. New York, 394 U.S. 576, 592 (1969). Indeed, "[t]hose wishing to express views unpopular with bottle throwers" cannot even be forced to pay more for their parade permits. Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134 (1992). They certainly cannot be ordered to stop speaking.

The danger of violent reaction to speech was commonplace in the civil rights movement. Limiting peaceful civil rights expression because of the fear of violent crowd reactions would have severely undermined both the First Amendment and the cause of equality. See generally Harry Kalven, Jr., The Negro and the First Amendment 140-46 (1965) (discussing the "heckler's veto" as a barrier to civil rights). Fortunately, the Supreme Court repeatedly responded by holding that "[p]articipants in an orderly demonstration in a public place" cannot be punished or silenced simply because "their critics might react with disorder or violence." Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966).

Even the expression in the classic case W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) – a silent refusal to salute the American flag – risked violent reaction. When that case reached the Supreme Court at the height of World War II, more than 2,000 Jehovah's Witness children had been expelled from schools because of their religious convictions about the flag. Michael Welch, Flag Burning 6 (2000). In 1940, an estimated 1,500 Jehovah's Witnesses were victims of mob violence in 355 communities in 44 states in just a six-month period. See Constitutional Amendment to Prohibit Physical Desecration of U.S. Flag, S. Rep. No. 108-33, at 57 n.17 (July 22, 2004) (minority views).

In such an atmosphere, a school principal confronted with a wave of patriotic fervor might con¬clude that preventing potential disruption justifies forcing a few dissenters to profess love for flag and country. After all, if the 9th Circuit's decision in Dariano is correct in holding that the need for order in the public schools trumps the "heckler's veto" doctrine, why not dispense with the prohibition against compelled speech as well? Yet the Supreme Court made clear – even (perhaps especially) against the backdrop of the violent hostility to those who refused to salute the flag – that such a refusal is protected by the First Amendment.

To be sure, school administrators may and should try to prevent physical confrontations at school. But though the "special characteristics of the school environment" give officials some latitude in main¬taining order, Tinker, 393 U.S. at 506, these characteristics do not give officials absolute discretion in achieving that objective.

The question is not whether order is to be maintained in the schools, but how it is to be maintained. It must be done in a way that is consistent with constitutional values. As Justice Robert Jackson wrote for the Court in Barnette, 319 U.S. at 637, the Bill of Rights "protects the citizen against the State itself and all of its creatures – Boards of Education not excepted." This means that schools should not be permitted to meet their responsibilities simply because silencing speech may be "the path of least resistance." McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014). The government may not "sacrifice speech for efficiency." Riley v. National Fed. of Blind of N.C., Inc., 487 U.S. 781, 795 (1988).

This is nothing more than recognition of the broader First Amendment concept that a speaker cannot be muzzled simply because the speech may prompt misconduct by a third party. Likewise, the government may not prohibit leafleting on the grounds that some recipients of the missives are litterbugs. E.g., Schneider v. New Jersey, 308 U.S. 147, 162 (1939) ("There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets."). And this is true even though restricting the leafleters may be easier, and more effective, than restricting the litterers.

The same is so with regard to hostile hecklers. The need to prevent disruption of the school environment cannot justify restricting students who engage in peaceful symbolic speech simply because others may take boisterous exception. Otherwise, as Judge O'Scannlain explained in his dissent from denial of rehearing en banc in Dariano, "[t]he demands of bullies will become school policy."

Teach Our Children Well

The Dariano case is also important because it serves as a teachable moment in the history of free expression – and one that is particularly potent given the purpose of public schools. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485 (1928). This is a particularly important concept in our educational institutions. Public schools are vital institutions in preparing individuals for participation as United States citizens and in preserving the values of our democratic system. Ambach v. Norwick, 441 U.S. 68, 76 (1979). "That schools are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our govern¬ment as mere platitudes." Barnette, 319 U.S. at 637.

And the lesson of the lower court decision in Dariano is a particularly bad one – it instructs would-be censors that violence works. "[T]he 'heckler's veto' rewards the enemies of freedom for their misbehavior." David P. Currie, The Constitution in the Supreme Court: 1946–1953, 37 Emory L.J. 249, 265 (Spring 1988). Instead of preventing disruption, the 9th Circuit's reasoning will thus encourage threats, or perhaps even violence that helps make the threats more credible. As Judge O'Scannlain explained in his dis¬sent from denial of rehearing, the panel's holding sends the message that "by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them. This perverse incentive created by the panel's opinion is precisely what the 'heckler's veto' doctrine seeks to avoid."

It is ironic that the student expression censured in Dariano involved a showing of respect for the American flag. A lifetime ago, the Supreme Court held that the government could not compel schoolchildren to salute the flag precisely because the First Amendment "includes both the right to speak freely and the right to refrain from speaking at all." Barnette, 319 U.S. at 645 (Murphy, J., concurring). For the same reasons, the government should not be allowed to prohibit school-children from displaying the flag with pride.