This is the fourth in a series of 10 special Politics Daily columns to complement C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The C-SPAN broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in arguments that shaped the law that has shaped our lives in countless ways. The fourth featured tape in the series, oral argument in Tinker v. Des Moines (1969), focuses upon symbolic speech and students' rights during the Vietnam War. It will be heard on C-SPAN Radio
at 6 p.m. ET on Saturday, Oct. 16. Subsequent tapes will be aired each Saturday evening until Dec. 18. The first in this series, on the Miranda warning, can be found here. The second, on flag-burning and the Constitution, can be found here. The third, on assisted-suicide, can be found here.
Tinker v. Des Moines
is a fabled Supreme Court decision, issued 41 years ago, with enormous relevance today. It invokes memories of an unpopular war abroad, symbolic protest at home, political turmoil, generational change, and the role of the Court as a bulwark against the suppression of controversial speech. The Court heard the case just months after the assassinations of Martin Luther King, Jr. and Robert F. Kennedy, Jr., the student riots
in Paris in May 1968, and the police riot against demonstrators in Chicago at the Democratic National Convention. The notion of student unrest was a very real one in November 1968 -- the justices had just decided a draft card-burning case in United States v. O'Brien
-- and you can tell from the questions and answers just how much the contemporary atmosphere weighed into the case.
Here's the back story in Tinker
. In 1965, President Lyndon Johnson dramatically escalated
U.S. involvement in the war in Vietnam. That same year, around the holiday season, a group of students in Iowa, including eighth-grader Mary Beth Tinker and her older brother, 15-year-old John Tinker, decided to wear black armbands to protest the war and to support a call by New York Sen. Robert F. Kennedy for a Christmas truce in Southeast Asia. School officials promptly suspended the students. Tinker sued, arguing that her First Amendment speech rights had been violated by the suspension. A federal judge ruled in favor of the school, declaring that the armbands "would be likely to disturb the disciplined atmosphere required for any classroom." The justices agreed to hear the case and then reversed the lower court ruling. Students don't shed their constitutional rights at the "schoolhouse gate," the Court ruled.
Writing for the 7-2 majority, Justice Abe Fortas
(who resigned from the Court, under pressure, 10 weeks after issuing this ruling) offered this trenchant assessment:
"In 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. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."
There were two dissents in the case. Justice Hugo Black, 82 years old when the case was heard and decided, clearly wasn't happy with the way it turned out. He wrote:
"While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that the few armband students did not actually `disrupt' the classwork, 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. And I repeat that, if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary."
When you listen to the oral argument, it becomes quickly clear that Justice Byron White, a World War II veteran, believed the armbands necessarily disrupted the school's teaching function because they were designed to convey a message about Vietnam even during class. Like Justice Black, Justice White dissented in the case. It also is clear from the argument that the attorney for the students, Dan Johnston, wanted to reassure the justices that he was not advocating for a new constitutional rule that would allow students to convey "disruptive" messages despite the objections of hassled and harried school boards. "I would also like to make a distinction between the expression of an opinion which is coupled with something else, like marching in the hallway, or standing up in the class and making a speech about the war in Vietnam during mathematics class."
Whatever else it meant for free speech rights, Tinker v. Des Moines
marked the ending of an era. In 1969, just a few months after Tinker
was decided, the "Warren Court" was no more. Chief Justice Earl Warren resigned following the 1968-1969 term and was replaced by Nixon appointee Warren Burger. Justice Fortas was replaced by another Nixon appointee, Harry Blackmun. And the Court's liberal tide had turned.
Finally, the follow up. In June 2007, in a case styled Morse v. Frederick
, the Supreme Court distinguished (and limited) its precedent in Tinker
. In Morse
, the Court ruled 5-4 that a banner unfurled by students at a school event -- a banner declaring "Bong Hits 4 Jesus" -- was a type of expression that school officials could
reasonably bar in the name of preventing drug use.