Tuesday, June 07, 2005


Pure Speech in a Closed-Circuit, December '65

No matter how much older and more stupider and conservativer I get, I can always mainline my teen brain by remembering my 11th-grade journalism class when I learned about Tinker v. Des Moines. Tinker v. Des Moines is the only case I remember from the week we spent studying First Amendment Supreme Court decisions.
Tinker v. Des Moines is the one where five public school students (including high schooler John Tinker and his sister, jr. high schooler—Mary Beth Tinker) got suspended for wearing black armbands to school in December 1965 to protest the Vietnam War.
The teens won the case, which was argued in 1968 and decided in ‘69. In the majority 7-2 opinion, Justice Abe Fortas famously wrote: “It can hardly be argued that…students…shed their constitutional rights to freedom of speech..at the schoolhouse gate.” And that wasn’t all Fortas had for my Paul Weller electric guitar heart. He added: “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.”
Today, of course, I wouldn’t be surprised if Mullah Dobson used the Tinker decision to argue that Evangelical kids can’t be expected to shed their freedom of religion at the schoolhouse gate and are entitled to lesson plans on “intelligent design.”
But woe is me. Tinker v. Des Moines is still pure teen heroin that keeps me high and in line.

Here are two Q&A excerpts. In the first one, Justice Byron White questions Mary Beth Tinker’s lawyer Dan Johnston. Second, Justice Thurgood Marshall questions the Des Moines school board lawyer, Allan Herrick.

From Tinker v. Des Moines/393 U.S. 503 (1969).

NOVEMBER 12, 1968:

Justice White: Why did they wear the armband to class? To express that message?

Johnston: To express that message, yes.

White: To everybody in the class?

Johnston: To everyone in the class, yes, Your Honor.

White: Everybody while they were listening to some other subject matter was supposed to be looking at the armband and taking in that message?

Johnston: Well, to the extent that they would see it. But I don’t believe there was any—I don’t believe that the…

White: Well, they were intended to see it, weren’t they?

Johnston: They were intended to see it in a way that would not be distracting…

White: And to understand it.

Johnston: And to understand it.

White: And to absorb that message…

Johnston: And to absorb that message…

White: While they’re studying arithmetic or mathematics, they’re supposed to be taking in this message about Vietnam?


Herrick: We had a situation here where it was explosive… All right. This is page 70, at the top of the Appendix. “A former student at one of our high schools was killed in Vietnam. Some of his friends are still in school. It was felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.”

Justice Marshall: Do we have a city in this country that hasn’t had someone killed in Vietnam?

Herrick: No, I think not, Your Honor, but I don’t think it would be an explosive situation in most cases. But if someone is going to appear in court with an armband here, protesting the thing, that it could be explosive. That is the situation we find ourselves in.

Marshall: It COULD be.

Herrick: What?

Marshall: It COULD be. Is that your position? And there is no evidence that it WOULD be? Is that the rule you want us to adopt?

Herrick: No, not at all, Your Honor.

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