MARY BETH TINKER (PETITIONER IN TINKER V. DES MOINES STUDENT FREE SPEECH ADVOCATE): I was raised to pay attention to what’s going on and to talk about it. You’re supposed to speak up when you see things that are not fair.

TITLE ON SCREEN: Student Speech and the Supreme Court

ARCHIVAL:
NEWS REPORT: This flat, open country provides a haven for the enemy.

MARY BETH TINKER: When I was 10 years old, the Vietnam War was building up, and it was on the news more and more, and so we would talk about the war at dinner, and so that’s when the idea of black armbands came up. We decided to wear them to school to mourn for the dead in Vietnam and to say that there should be a truce.

Some students at Roosevelt High School ran with the idea, and signed up about 50 kids to wear black armbands. But the day before we were planning to wear the black armbands to school, we heard that there would be a rule that if any student wore one, they would be asked to take off the armband, and if they refused they would be suspended.

Now that was ironic, because the school district allowed black armbands if you were sad about the football game. But the principal called together a hasty meeting and made a rule against black armbands. And then we had a real moral dilemma, because I wasn’t a rule-breaker, and all of us, we didn’t know what to do. And so a small group of us, about 10 kids, decided we would be willing to be suspended if that’s what it took to speak up and express our feelings and our grief about the war that Christmastime.

We were also passing out this statement that says, We mourn for the dead in Vietnam, and to call for a Christmas truce. So we passed that out the day that we were suspended. Here’s my suspension notice, I found that in a box in the basement a while back. There were five students suspended.mAnd so we went back to the school and the school board voted against us, and so the A.C.L.U. said, well, we’re going to have to take this to court. Some people got really mad at us. Someone threatened to bomb our house on Christmas Eve. Someone threw red paint at our house. People loved to call us communists.

This is one of the many postcards and mail that we got, criticizing us for speaking up for peace. We just thought it was crazy. We didn’t hate anybody. Our actions came from love. We wanted to stop the war, stop the killing. As a child, it was very confusing to be attacked and threatened, to have our lives threatened for speaking up. But it was extraordinary times.

ARCHIVAL (CBS EVENING NEWS, 2-24-69):
NEWS ANCHOR: The Supreme Court today endorsed the right of student protest so long as the protest does not disrupt order or interfere with the rights of others. The court said students do not leave their freedoms of speech and expression at the school door.

MARY BETH TINKER: It was 1969, February 24th, when we won the case. The Supreme Court ruled by 7 to 2 that schools should not be enclaves of totalitarianism. That is in the ruling, and one of my favorite parts of the ruling is that students are persons under our Constitution with the rights and responsibilities of persons.

This case, Tinker v. Des Moines, it’s considered a landmark case – a precedent case that other cases build on – because it’s a fairly simple message. It says that youth should have a say, and that education includes talking about things you care about. It  affirms young people’s right to have a say about their lives.

EMILY GOLD WALDMAN: (PROFESSOR OF CONSTITUTIONAL AND EDUCATION LAW, PACE UNIVERSITY):This was a watershed moment. The Tinker decision really set the stage for student’s speech rights and a lot of student speech cases still come down to Tinker. Completely nonviolent, right, not encroaching on anyone else’s physical space or personally targeted at any other students.

ARCHIVAL (5-31-22):
CROWD CHANTING: No more of this! No more of this! No more of this! No more of this!

EMILY GOLD WALDMAN: But a lot of current free speech cases in one way or another are not quite as sympathetic.

So, for example, there was this one case where a student wanted to wear a shirt protesting a day of silence for gay students. He wanted to wear this shirt saying Be ashamed, our school has embraced what God has condemned. And the school tried to tell him you can’t wear that. So he sues the school for violating his free speech rights. At the same time that school district was facing a lawsuit from other students who were gay who were saying that the school hadn’t done enough to protect them from harassment.

Those types of situations put schools in a difficult position. It’s not so, sort of, neat and tidy. One big complication that didn’t exist at the time of Tinker was, of course, digital speech. We finally got a Supreme Court case in 2021.

ARCHIVAL (WOI-TV, 4-27-21):
NEWS REPORT: As a 14-year-old high school freshman, Brandi Levy tried out for the varsity cheerleading squad but didn’t make the cut. 

ARCHIVAL (CNN, 4-27-21):
NEWS REPORT: She posted a photo on Snapchat, venting.

ARCHIVAL (CBS NEWS, 6-23-21):
NEWS REPORT: Me and my friend posted a Snapchat on my story. It said f school, f cheer, f softball, f everything.

EMILY GOLD WALDMAN: So the coaches find out about this. Ultimately, the school punishes her, and they punish her pretty strictly. They kick her off the cheerleading team for an entire year.

ARCHIVAL (WOI-TV, 4-27-21):
NEWS REPORT: I feel like I – when I signed this code of conduct, I didn’t sign away my First Amendment rights. 

EMILY GOLD WALDMAN: There were a bunch of really important questions in the case. Number one was, if the only punishment is getting thrown off extracurricular activity, do you even potentially have a claim? The bigger question was, can the school punish you for digital speech when you didn’t even engage in the speech at school?

ARCHIVAL (4-27-21):
Now, four years later, the Snapchat post and Levy’s punishment are at the center of a U.S. Supreme Court case.

ARCHIVAL (MSNBC, 6-23-21):
NEWS REPORT: By a vote of 8 to 1, the Supreme Court said she should not have been punished, partly because her expression wasn’t that disruptive. But going further, Justice Stephen Breyer’s majority opinion said schools have far less authority over students when they’re not on campus.

EMILY GOLD WALDMAN: What the court basically said was, this punishment violated the First Amendment. But the court left open a lot of questions about, well, in what circumstances can the school punish or restrict someone’s digital speech? Clearly, that case, the Supreme Court said no, that’s going way too far.

But what is not too far? So the extent to which schools can restrict or punish students’ digital speech is still somewhat of an open question. Tinker doesn’t have some of the complexities that you see in some cases today. It lays out these broad principles, then it’s really for schools – and sometimes ultimately courts – to flesh out exactly what they mean.

But the Tinker decision is still really important today because the baseline still holds. Students have free speech rights when they are at school. I think there still is a lot of room for students to express their own views. And I think part of the mission of schools should be to enable students to engage in those conversations in a productive way. We have a democracy, and so school is an important training ground for that.

ARCHIVAL (9-20-19):
STUDENT: We’re the generation set to inherit this beautiful planet and it’s like. . . .

MARY BETH TINKER: It’s important for young people to have a say in their lives because the schools and our society are stronger when young people are able to contribute their ideas and their energy.

ARCHIVAL (7-11-20):
STUDENT: And I am the founder of the Black student union.

MARY BETH TINKER: The lesson of the Tinker case is: Speak up. Stand up. Whatever it is that you care about, learn your rights and practice them.

(END)