CHAPTER TWO – 7364D
When Constitutional Law Meets Flash
Mobs – A Practical Method to Inform
Juveniles about First Amendment
Rights and Limitations
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Course Summary
Social media networks and mobile tech devices have made it easier for juveniles to
exercise their rights of assembly and free speech. But what exactly are these rights
and what are the limitations? This course explores how members of the legal
community can effectively convey to juveniles some of the most important principles
of a civil society while encouraging them to critically think about their
responsibilities as members of such society.
Course Planner:
Honorable John M. Younge
Faculty:
Honorable Genece Brinkley
Renee F. Bergmann, Esq.
Elvin P. Ross, III, Esq.
David K. Trevaskis, Esq.
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WHEN CONSTITUTIONAL LAW MEETS FLASH MOBS
—A Practical Method to Inform Juveniles about First Amendment Rights and Limitations
Friday, October 5, 2012
2:00 – 2:05 p.m. Introduction and Objectives (Elvin Ross)
• Socializing with digital technology (social media networks and mobile
tech devices)
• Conveying substantive information to juveniles
• Impacting juvenile’s knowledge base with regard to core constitutional
principles, methods of dispute resolution, and the responsibilities of
citizenship
2:05 - 2:30 p.m Overview and Discussion of the First Amendment (Renee Bergmann &
David Trevaskis)
• What does the First Amendment provide?
• What are some cases that have most informed our understanding of free
speech and assembly rights?
o Schenk v. United States, 249 U.S. 47 (1919)
o Tinker v. Des Moines, 393 U.S. 503 (1969)
o Brandenburg v. Ohio, 395 U.S. 444 (1969)
2:30 – 2:55 p.m. Modeling the Lesson (Hon. Genece Brinkley)
• Pre-Lesson Preparation
• Classroom Management
• Framing Question
• Classroom Activities
o Flash mobs
o Cyber bullying
o Mass protests
• Post-Lesson Evaluation
2:55 – 3:00 p.m. Closing Remarks (Elvin Ross)
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FLASH MOBS: The Rights of Assembly and FREE
Speech
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Page 1 of 5 – Lesson at a Glance
High School
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FRAMING
QUESTION:
MATERIALS
NEEDED:
Are there limits to Constitutional Rights? What channels of power
are most effective to create change?
Attached handouts, including: copy of first amendment, case blurbs,
flash mob scenario, and role cards.
OPENING
ACTIVITY:
(5 minutes)
1. Ask students to read the First Amendment silently, and to jot
down some ideas about why the protections of individual rights exist.
2. Discuss briefly as a class why it was important for the framers to
be able to assemble and speak their minds. (i.e. marketplace of ideas
notion).
1. Ask volunteers to read aloud the flash mob scenario.
2. Break into four groups. Hand out the sheet describing the role of
each group. (Legal team should circulate to clarify/answer any
questions)
3. With a legal team member as moderator, each group should
answer the questions within their group, taking notes about the best
course of action and arguments to make.
CLASS
ACTIVITY:
(40 minutes)
1.
Every student should pair off with another student from a
different group and explain why their group decided to approach the
situation in the way they did. Pretend you are arguing for your
group’s position, and try to explain the consequences of doing things
another way.
2.
As an entire class, debrief regarding the limits of free speech
and assembly. When do many people’s rights outweigh one person’s
rights? What strategies can a student use to avoid being at the wrong
place at the wrong time, and avoid the “mob mentality?”
ENRICHMENT -Ask students to write down five alternatives to violence/ways to
make change that do not involve threats, intimidation, or physical
ACTIVITY:
Extended class
harm to others.
periods or
-Think about the early lesson “No Vehicles in the Park.” How do
homework:
courts step in to apply the law in a way that meets with the statutory
intent but still maintain the spirit of the law? In the case of the first
amendment, how should Courts help apply the law in such a way that
it covers just enough activity, and not too much?
CLOSING
ACTIVITY:
(5-10 minutes)
PA CIVICS
STANDARDS
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Page 2 of 5 – Amendment/Case
Handout
High School
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AMENDMENT 1 to the UNITED STATES CONSTITUTION:
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
SELECTED CASES ON FREE SPEECH/ASSEMBLY:
Schenk v. United States: Mr. Schenk was the Secretary of the Socialist Party of America
during World War I, and he wanted people to oppose the draft. He made pamphlets saying that
th
the draft was involuntary servitude – (like slavery, which is prohibited by the 13 amendment).
Schenk was convicted of violating the Espionage Act of 1917. Justice Oliver Wendell Holmes
wrote a unanimous opinion of the Supreme Court as follows:
•
•
•
•
The conviction was upheld. Encouraging insubordination can be a crime under the
Constitution.
“The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic.”
Test is whether the words/circumstances create a clear and present danger” that they
will bring about the harms laws want to prevent.
Wartime allows greater restrictions on free speech than peacetime. Perhaps the ends
justify the means?
Tinker v. Des Moines: Students wore armbands to school to protest the Vietnam War. The
school district suspended the students until they agreed to remove the armbands. On
appeal, the Supreme Court ruled:
•
•
•
Students do not “shed their constitutional rights” at the schoolhouse gates.
More than “discomfort” is needed to justify limiting students’ right to free speech
Test: schools can restrict conduct that “materially and substantially” interferes with the
discipline or normal operation of the school.
Brandenburg v. Ohio: A Ku Klux Klan leader invited a TV station to a rally, where racial hatred
was expressed. The KKK group called for “revengeance” and used ethnic slurs. The leader was
convicted for violating an Ohio law against syndicalism. The Court reversed the Conviction:
•
Government cannot punish abstractly advocating force or illegal acts. Speech is
protected unless it encourages "imminent lawless action."
NOTE: The KKK and groups that promote hatred of others are usually allowed to assemble but
often must go through a complex process to get a permit in order to do so. Do we allow only
speech that we like?
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Page 3 of 5 – Flash Mob Scenario
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BACKGROUND: Recently, at East Thrilladelphia High School, there has been a lot of
tension and unrest. This year, the boundaries for the neighborhoods that send students to
the school have changed. Some of the student groups have been fighting over whether
the new students from the Nayborhood section of the city should be allowed to come to
their school.
The Student Council, led by a very responsible student named Terry Peaceful, wants a
safer, more organized school environment. They believe in promoting learning. Terry
and her followers want the new students to go somewhere else so that the building is not
so full, the cafeteria is not so crowded, and the class size is smaller.
The leader of the Nayborhood students, Pat Gimmespace, is angry that the friends from
her/his neighborhood are not being welcomed into the school. Pat feels they have as
much right to be there as anybody, and in fact, they live closer to the school than many of
the kids on the student council who want Nayborhood kids to leave. Pat is an A student,
and is sick of being treated like a second class citizen of the school.
The principal of East Thrilladelphia is Angel Orderly. She allows students to gather at
campus facilities for “authorized student groups” as long as the student group asks for
permission in advance. School policy does not allow destroying property or physically
hurting students, teachers, or administrators.
A FLASH MOB ERUPTS: On Monday, Pat Gimmespace sent texts to all the
Nayboorhood students and put up a notice on FaceBook that there would be a meeting in
the schoolyard on Friday after school. Pat and some friends made signs that say “WE
BELONG” and “IMPROVE YOUR NAYBORHOOD.” One of Pat’s friends made a
sign that says “THE THRILL IS OVER. MOVE OVER OR GET RUN OVER.” Other
signs said “TREAT RIGHT OR GOODNIGHT.”
The message about the gathering got out to everybody, and over 75 students from all
different groups showed up on Friday. The chanting got louder, and turned to pushing.
Pat was caught up in the excitement of leadership and shoved another student. Big fights
broke out, and school property was destroyed.
Some students were suspended, and others were arrested. Any student who was present
at the flash mob got at least a 3 week detention during which they were to work on repair
and repainting the property damage. All of the activities were caught on the security
camera.
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Page 4 of 5 – Roles/Discussion Questions
pt. 1
High School
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GROUP ROLES. Directions: Discuss the questions in your group. Take notes so
you can explain to others why your group thinks the way it does.
GROUP ONE: Student Council Group, led by Terry Peaceful:
Terry is sad that Friday got so crazy, but secretly she is glad that the school can now see
what a bad influence the Nayborhood kids can be. Now that there is momentum against
the new kids, she wants to organize an official campaign to get the Nayborhooders out of
her high school.
1) How should Terry convince people to get rid of the new students? What tools
should she use?
2) Who should Terry talk to? Who has the power to keep out the Nayborhood kids?
3) What are the consequences of kicking out the Nayborhood kids, and what can
Terry advocate to convince others that any negative impact can be minimized?
GROUP TWO: Nayborhood Group, led by Pat Gimmespace:
Pat didn’t mean for things to get violent, but they got out of hand. Now, Pat doesn’t
mind because maybe somebody will pay attention to how badly the Nayborhood kids are
being treated. Pat got suspended from school, but did not get arrested. Discuss as a
group the following questions, and be ready to present your ideas to the whole class:
1) Is Pat’s group an “authorized group” that could assemble on school property?
2) How should Pat’s group deal with the fact that school property was destroyed by
Nayborhood kids?
3) What is the best way for Nayborhood kids to stand up for their rights?
4) Is violence necessary to make change, or does it hurt the way others see you?
5) What signs in Pat’s group were protected by the Constitution (use your case
summaries on the other page.)
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Page 5 of 5 – Roles/Discussion Questions
pt. 2
High School
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ROLES – CONT’. Remember to take notes so you can justify/explain your answers.
GROUP THREE: School administrators and teachers, led by Angel Orderly:
Angel needs to call for an assembly right away to help parents understand why the
school environment turned violent.
1) What should Angel say at the assembly about time, place and manner of
expression? How should Angel encourage frustrated students to express
themselves in a better way?
2) How should Angel justify students being arrested and suspended?
3) If the gathering had been peaceful, would it still have violated the “authorized
group” provision for school meetings?
4) Should Angel call the superintendent to try to get the Nayborhood kids out of
her school?
GROUP FOUR: Judge and lawyers involved in the arrests, led by Judge Lawful:
Judge Lawful wants to uphold the law in an unbiased fashion, but feels that people from
his neighborhood are being discriminated against. S/he believes that more student
involvement in political issues, not less, is important. The Judge has decided to let the
lawyers argue both sides of the arrest cases so that s/he can make a fair decision.
1) Was what the flash mob organizers did the same or different from yelling
“fire” in a crowded theater? The same as the KKK organizers?
2) Pretend you are the attorney for a student, Jamie, who was present Friday but
stayed on the outer edge of the violent group. Jamie was pushing only
because he had to keep from being crushed in the insanity. What arguments
would you make about why Jamie was exercising his/her rights or was acting
lawfully?
3) Pretend you are the attorney for the school district. What changes would you
recommend to school policy so that permits could be given for a peaceful
assembly?
4) Pretend you are the Judge and you decided to convict a particularly violent
student based on the evidence. What would you say to the unruly students
who hurt others and destroyed property? What cases would you cite in your
decision and why?
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Brandenburg v. Ohio, 395 U.S. 444 (1969)
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BRANDENBURG v. OHIO
No. 492
SUPREME COURT OF THE UNITED STATES
395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430
February 27, 1969, Argued
June 9, 1969, Decided
PRIOR HISTORY: APPEAL FROM THE
SUPREME COURT OF OHIO.
DISPOSITION:
Reversed.
CASE SUMMARY:
PROCEDURAL POSTURE: Petitioner appealed a
judgment from the Supreme Court of Ohio, which,
after finding that petitioner had not presented a
constitutional issue for appeal, upheld petitioner's
conviction under the state's criminal syndicalism
statute, Ohio Rev. Code Ann. § 2923.13.
OVERVIEW: Petitioner was a leader of the Ku Klux
Klan and was convicted by the Ohio courts after a
television news report was aired broadcasting
speeches made by petitioner. He was charged with
violating Ohio's criminal syndicalism statute, Ohio
Rev. Code Ann. § 2923.13, which made it unlawful,
inter alia, to advocate crime or methods of terrorism
or to voluntarily assembly with any group to teach
or advocate doctrines of syndicalism. His conviction
was upheld on appeal by the Supreme Court of
Ohio. The United States Supreme Court granted
review and concluded that, because Ohio's criminal
syndicalism statute did not draw a distinction between teaching the need for force or violence and
preparing a group for violent action, the statute unconstitutionally intruded on the rights guaranteed by
the U.S. Const. amends. I and XIV. As a result, the
Court reversed petitioner's conviction because the
statute upon which his conviction was based was
unconstitutional.
OUTCOME: The judgment finding that petitioner did
not present a constitutional issue for appeal, thereby upholding petitioner's conviction under the
state's criminal syndicalism statute, was reversed
because the statute was declared unconstitutional.
The court held that the statute impermissibly
reached speech protected by the U.S. Const.
amends. I and XIV and petitioner's conviction was
reversed.
SUMMARY:
The defendant, a leader of a Ku Klux Klan
group, spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. His remarks
included such statements as: "Bury the niggers,"
"the niggers should be returned to Africa," and
"send the Jews back to Israel." In an Ohio state
court, he was convicted, under Ohio's criminal syndicalism statute, both for advocating the duty, necessity, or propriety of crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or political reform, and for
voluntarily assembling with any society, group, or
assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. Although
he challenged the constitutionality of the criminal
syndicalism statute under the First and Fourteenth
Amendments to the Federal Constitution, the intermediate appellate court of Ohio affirmed his conviction without opinion, and the Supreme Court of
Ohio dismissed his appeal on the ground that no
substantial constitutional question was presented.
On appeal, the United States Supreme Court
reversed. In a per curiam opinion, expressing the
unanimous views of the court and overruling Whitney v California (1927) 274 US 357, 71 L Ed 1095,
47 S Ct 641, it was held that the constitutional
guaranties of free speech and free press did not
permit a state to forbid or proscribe advocacy of the
use of force or of law violation, except where such
advocacy was directed to inciting or producing imminent lawless action and was likely to incite or
produce such action, and that since the Ohio criminal syndicalism statute, by its own words and as
applied, purported to punish mere advocacy and to
forbid, on pain of criminal punishment, assembly
with others merely to advocate the described type
of action, the statute violated the First and Fourteenth Amendments.
Black and Douglas, JJ., each concurring separately, joined the court's opinion, but expressed
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disagreement with the "clear and present danger"
test which had been applied in an earlier decision
cited by the court.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
CONSTITUTIONAL LAW §925
free speech -- advocacy of force or lawlessness -Headnote:[1]
The constitutional guaranties of free speech
and free press do not permit a state to forbid or
proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to
inciting or producing imminent lawless action and is
likely to incite or produce such action.
[***LEdHN2]
CONSTITUTIONAL LAW §925
assemble with a group formed to teach or advocate
the doctrines of criminal syndicalism, where (1) the
first count of the indictment charged that the accused, a Ku Klux Klan leader who spoke at a Klan
meeting, did unlawfully by word of mouth advocate
the necessity or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform; (2) the second count
charged that he did unlawfully voluntarily assemble
with a group or assemblage of persons formed to
advocate the doctrines of criminal syndicalism; (3)
the trial judge's charge merely followed the language of the indictment; (4) neither the indictment
nor the trial judge's instructions to the jury nor construction of the statute by the state courts in any
way refined the statute's bald definition of the crime
in terms of mere advocacy not distinguished from
incitement to imminent lawless action; and (5) the
statute, by its own words and as applied, thus purported to punish mere advocacy and to forbid, on
pain of criminal punishment, assembly with others
merely to advocate the described type of action.
free speech -- teaching of need for violence -Headnote:[2]
For purposes of determining whether the constitutional guaranties of free speech and free press
are violated, the mere abstract teaching of the moral propriety or even moral necessity for a resort to
force and violence is not the same as preparing a
group for violent action and steeling it to such action, and a statute which fails to draw this distinction
impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments and
sweeps within its condemnation speech which the
Federal Constitution has immunized from governmental control.
[***LEdHN3]
CONSTITUTIONAL LAW §927
free speech -- advocacy of criminal syndicalism -Headnote:[3]
The First and Fourteenth Amendments' guaranties of free speech and free press preclude a conviction for violation of a state criminal syndicalism
statute which punishes persons who advocate or
teach the duty, necessity, or propriety of violence as
a means of accomplishing industrial or political reform, or who publish or circulate or display any
book or paper containing such advocacy, or who
justify the commission of violent acts with intent to
exemplify, spread, or advocate the propriety of the
doctrines of criminal syndicalism, or who voluntarily
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[***LEdHN4]
CONSTITUTIONAL LAW §925
CONSTITUTIONAL LAW §940
free speech -- right of assembly -Headnote:[4]
The right of peaceable assembly is a right cognate to those of free speech and free press and is
equally fundamental, and statutes affecting the right
of assembly, like those touching on freedom of
speech, must observe the established distinctions
between mere advocacy and incitement to imminent lawless action.
SYLLABUS
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute
for "advocat[ing] . . . the duty, necessity, or propriety
of crime, sabotage, violence, or unlawful methods
of terrorism as a means of accomplishing industrial
or political reform" and for "voluntarily assembl[ing]
with any society, group or assemblage of persons
formed to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial
judge's instructions refined the statute's definition of
the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Held: Since the statute, by its words and as applied,
purports to punish mere advocacy and to forbid, on
pain of criminal punishment, assembly with others
merely to advocate the described type of action, it
falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and
press do not permit a State to forbid advocacy of
the use of force or of law violation except where
such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or
produce such action. Whitney v. California, 274
U.S. 357, overruled.
COUNSEL: Allen Brown argued the cause for appellant. With him on the briefs were Norman
Dorsen, Melvin L. Wulf, Eleanor Holmes Norton,
and Bernard A. Berkman.
Leonard Kirschner argued the cause for appellee.
With him on the brief was Melvin G. Rueger.
Paul W. Brown, Attorney General of Ohio, pro se,
and Leo J. Conway, Assistant Attorney General,
filed a brief for the Attorney General as amicus curiae.
JUDGES: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall
OPINION BY: PER CURIAM
OPINION
The appellant, a leader of a Ku Klux Klan
group, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for
"voluntarily assembl[ing] with any society, group, or
assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Ohio
Rev. Code Ann. § 2923.13. He was fined $ 1,000
and sentenced to one to 10 years' imprisonment.
The appellant challenged the constitutionality of the
criminal syndicalism statute under the First and
Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of
Ohio affirmed his conviction without opinion. The
Supreme Court of Ohio dismissed his appeal, sua
sponte, "for the reason that no substantial constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was taken to
this Court, and we noted probable jurisdiction. 393
U.S. 948 (1968). We reverse.
The record shows that a man, identified at trial
as the appellant, telephoned an announcer-reporter
on the staff of a Cincinnati television station and
invited him to come to a Ku Klux Klan "rally" to be
held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the
events. Portions of the films were later broadcast
on the local station and on a national network.
The prosecution's case rested on the films and
on testimony identifying the appellant as the person
who communicated with the reporter and who
spoke at the rally. The State also introduced into
evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a
Bible, and a red hood worn by the speaker in the
films.
One film showed 12 hooded figures, some of
whom carried firearms.
They were gathered
around a large wooden cross, which they burned.
No one was present other than the participants and
the newsmen who made the film. Most of the words
uttered during the scene were incomprehensible
when the film was projected, but scattered phrases
could be understood that were derogatory of Negroes and, in one instance, of Jews. 1 Another scene on the same film showed the appellant, in Klan
regalia, making a speech. The speech, in full, was
as follows:
"This is an organizers' meeting. We have had
quite a few members here today which are -- we
have hundreds, hundreds of members throughout
the State of Ohio. I can quote from a newspaper
clipping from the Columbus, Ohio Dispatch, five
weeks ago Sunday morning. The Klan has more
members in the State of Ohio than does any other
organization. We're not a revengent organization,
but if our President, our Congress, our Supreme
Court, continues to suppress the white, Caucasian
race, it's possible that there might have to be some
revengeance taken.
"We are marching on Congress July the Fourth,
four hundred thousand strong. From there we are
dividing into two groups, one group to march on St.
Augustine, Florida, the other group to march into
Mississippi. Thank you."
1
The significant portions that could be
understood were:
"How far is the nigger going to -- yeah."
"This is what we are going to do to the
niggers."
"A dirty nigger."
"Send the Jews back to Israel."
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"Let's give them back to the dark garden."
"Save America."
"Let's go back to constitutional betterment."
"Bury the niggers."
"We intend to do our part."
"Give us our state rights."
"Freedom for the whites."
"Nigger will have to fight for every inch
he gets from now on."
The second film showed six hooded figures
one of whom, later identified as the appellant, repeated a speech very similar to that recorded on
the first film. The reference to the possibility of "revengeance" was omitted, and one sentence was
added: "Personally, I believe the nigger should be
returned to Africa, the Jew returned to Israel."
Though some of the figures in the films carried
weapons, the speaker did not.
[***LEdHR1] [1] [***LEdHR2] [2]The Ohio
Criminal Syndicalism Statute was enacted in 1919.
From 1917 to 1920, identical or quite similar laws
were adopted by 20 States and two territories. E.
Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this
Court sustained the constitutionality of California's
Criminal Syndicalism Act, Cal. Penal Code §§
11400-11402, the text of which is quite similar to
that of the laws of Ohio.
Whitney v. California,
274 U.S. 357 (1927). The Court upheld the statute
on the ground that, without more, "advocating" violent means to effect political and economic change
involves such danger to the security of the State
that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been
thoroughly discredited by later decisions. See
Dennis v. United States, 341 U.S. 494, at 507
(1951). These later decisions have fashioned the
principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of
law violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action.
2
As we said in Noto v. United States, 367 U.S.
290, 297-298 (1961), "the mere abstract teaching . .
. of the moral propriety or even moral necessity for
a resort to force and violence, is not the same as
preparing a group for violent action and steeling it to
such action." See also Herndon v. Lowry, 301 U.S.
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242, 259-261 (1937); Bond v. Floyd, 385 U.S. 116,
134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms
guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech
which our Constitution has immunized from governmental control. Cf.
Yates v. United States,
354 U.S. 298 (1957); DeJonge v. Oregon, 299
U.S. 353 (1937); Stromberg v. California, 283 U.S.
359 (1931). See also United States v. Robel, 389
U.S. 258 (1967); Keyishian v. Board of Regents,
385 U.S. 589 (1967); Elfbrandt v. Russell, 384
U.S. 11 (1966); Aptheker v. Secretary of State,
378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S.
360 (1964).
2 It was on the theory that the Smith Act,
54 Stat. 670, 18 U. S. C. § 2385, embodied
such a principle and that it had been applied
only in conformity with it that this Court sustained the Act's constitutionality. Dennis v.
United States, 341 U.S. 494 (1951). That this
was the basis for Dennis was emphasized in
Yates v. United States, 354 U.S. 298,
320-324 (1957), in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the
Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce
forcible action.
[***LEdHR3]
[3]Measured by this test,
Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate
or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or
political reform"; or who publish or circulate or display any book or paper containing such advocacy;
or who "justify" the commission of violent acts "with
intent to exemplify, spread or advocate the propriety
of the doctrines of criminal syndicalism"; or who
"voluntarily assemble" with a group formed "to
teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's
instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere
advocacy not distinguished from incitement to imminent lawless action. 3
3 The first count of the indictment charged
that appellant "did unlawfully by word of
mouth advocate the necessity, or propriety of
crime, violence, or unlawful methods of terrorism as a means of accomplishing political
reform . . . ." The second count charged that
appellant "did unlawfully voluntarily assemble
with a group or assemblage of persons
formed to advocate the doctrines of criminal
syndicalism . . . ." The trial judge's charge
merely followed the language of the indictment. No construction of the statute by the
Ohio courts has brought it within constitutionally permissible limits. The Ohio Supreme Court has considered the statute in
only one previous case, State v. Kassay,
126 Ohio St. 177, 184 N. E. 521 (1932),
where the constitutionality of the statute was
sustained.
[***LEdHR4] [4]Accordingly, we are here confronted with a statute which, by its own words and
as applied, purports to punish mere advocacy and
to forbid, on pain of criminal punishment, assembly
with others merely to advocate the described type
of action. 4Such a statute falls within the condemnation of the First and Fourteenth Amendments. The
contrary teaching of Whitney v. California, supra,
cannot be supported, and that decision is therefore
overruled.
4 Statutes affecting the right of assembly,
like those touching on freedom of speech,
must observe the established distinctions
between mere advocacy and incitement to
imminent lawless action, for as Chief Justice
Hughes wrote in De Jonge v. Oregon, supra,
at 364:
"The right of peaceable assembly is a
right cognate to those of free speech and
free press and is equally fundamental." See
also United States v. Cruikshank, 92 U.S.
542, 552 (1876); Hague v. CIO, 307 U.S.
496, 513, 519 (1939); NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449, 460-461
(1958).
Reversed.
CONCUR BY: BLACK; DOUGLAS
CONCUR
MR. JUSTICE BLACK, concurring.
I agree with the views expressed by MR. JUSTICE DOUGLAS in his concurring opinion in this
case that the "clear and present danger" doctrine
should have no place in the interpretation of the
First Amendment. I join the Court's opinion, which,
as I understand it, simply cites Dennis v. United
States, 341 U.S. 494 (1951), but does not indicate
any agreement on the Court's part with the "clear
and present danger" doctrine on which Dennis purported to rely.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I desire to
enter a caveat.
The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during World War I -- a war "declared" by the Congress, not by the Chief Executive. The case was
Schenck v. United States, 249 U.S. 47, 52, where
the defendant was charged with attempts to cause
insubordination in the military and obstruction of
enlistment. The pamphlets that were distributed
urged resistance to the draft, denounced conscription, and impugned the motives of those backing
the war effort. The First Amendment was tendered
as a defense. Mr. Justice Holmes in rejecting that
defense said:
"The question in every case is whether the
words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is
a question of proximity and degree."
Frohwerk v. United States, 249 U.S. 204, also
authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very
critical of the war effort in World War I. Schenck
was referred to as a conviction for obstructing security "by words of persuasion." Id., at 206. And the
conviction in Frohwerk was sustained because "the
circulation of the paper was in quarters where a
little breath would be enough to kindle a flame."
Id., at 209.
Debs v. United States, 249 U.S. 211, was the
third of the trilogy of the 1918 Term. Debs was
convicted of speaking in opposition to the war
where his "opposition was so expressed that its
natural and intended effect would be to obstruct
recruiting." Id., at 215.
"If that was intended and if, in all the circumstances, that would be its probable effect, it would
not be protected by reason of its being part of a
general program and expressions of a general and
conscientious belief." Ibid.
In the 1919 Term, the Court applied the
Schenck doctrine to affirm the convictions of other
dissidents in World War I.
Abrams v. United
137
States, 250 U.S. 616, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he
did not think that on the facts a case for overriding
the First Amendment had been made out:
redundant discourse before us it had no chance of
starting a present conflagration. If in the long run
the beliefs expressed in proletarian dictatorship are
destined to be accepted by the dominant forces of
the community, the only meaning of free speech is
that they should be given their chance and have
their way."
"It is only the present danger of immediate evil or an
intent to bring it about that warrants Congress in
setting a limit to the expression of opinion where
private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of
the country." Id., at 628.
We have never been faithful to the philosophy
of that dissent.
Another instance was
Schaefer v. United
States, 251 U.S. 466, in which Mr. Justice Brandeis,
joined by Mr. Justice Holmes, dissented. A third
was Pierce v. United States, 252 U.S. 239, in
which again Mr. Justice Brandeis, joined by Mr.
Justice Holmes, dissented.
Those, then, were the World War I cases that
put the gloss of "clear and present danger" on the
First Amendment. Whether the war power -- the
greatest leveler of them all -- is adequate to sustain
that doctrine is debatable. The dissents in Abrams,
Schaefer, and Pierce show how easily "clear and
present danger" is manipulated to crush what
Brandeis called "the fundamental right of free men
to strive for better conditions through new legislation and new institutions" by argument and discourse ( Pierce v. United States, supra, at 273)
even in time of war. Though I doubt if the "clear
and present danger" test is congenial to the First
Amendment in time of a declared war, I am certain
it is not reconcilable with the First Amendment in
days of peace.
The Court quite properly overrules Whitney v.
California, 274 U.S. 357, which involved advocacy
of ideas which the majority of the Court deemed
unsound and dangerous.
Mr. Justice Holmes, though never formally
abandoning the "clear and present danger" test,
moved closer to the First Amendment ideal when
he said in dissent in Gitlow v. New York, 268 U.S.
652, 673:
"Every idea is an incitement. It offers itself for
belief and if believed it is acted on unless some
other belief outweighs it or some failure of energy
stifles the movement at its birth. The only difference between the expression of an opinion and an
incitement in the narrower sense is the speaker's
enthusiasm for the result. Eloquence may set fire
to reason. But whatever may be thought of the
138
The Court in Herndon v. Lowry, 301 U.S.
242, overturned a conviction for exercising First
Amendment rights to incite insurrection because of
lack of evidence of incitement. Id., at 259-261.
And see Hartzel v. United States, 322 U.S. 680. In
Bridges v. California, 314 U.S. 252, 261-263, we
approved the "clear and present danger" test in an
elaborate dictum that tightened it and confined it to
a narrow category. But in Dennis v. United States,
341 U.S. 494, we opened wide the door, distorting
the "clear and present danger" test beyond recognition. 1
1 See McKay, The Preference For Freedom, 34 N. Y. U. L. Rev. 1182, 1203-1212
(1959).
In that case the prosecution dubbed an agreement to teach the Marxist creed a "conspiracy." The
case was submitted to a jury on a charge that the
jury could not convict unless it found that the defendants "intended to overthrow the Government
'as speedily as circumstances would permit.'" Id., at
509-511. The Court sustained convictions under
that charge, construing it to mean a determination
of "'whether the gravity of the "evil," discounted by
its improbability, justifies such invasion of free
speech as is necessary to avoid the danger. '" 2
Id., at 510, quoting from United States v. Dennis,
183 F.2d 201, 212.
2 See Feiner v. New York, 340 U.S. 315,
where a speaker was arrested for arousing
an audience when the only "clear and present danger" was that the hecklers in the audience would break up the meeting.
Out of the "clear and present danger" test came
other offspring. Advocacy and teaching of forcible
overthrow of government as an abstract principle is
immune from prosecution.
Yates v. United
States, 354 U.S. 298, 318. But an "active" member,
who has a guilty knowledge and intent of the aim to
overthrow the Government by violence, Noto v.
United States, 367 U.S. 290, may be prosecuted.
Scales v. United States, 367 U.S. 203, 228. And the
power to investigate, backed by the powerful sanction of contempt, includes the power to determine
which of the two categories fits the particular witness. Barenblatt v. United States, 360 U.S. 109,
130. And so the investigator roams at will through
all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.
Judge Learned Hand, who wrote for the Court
of Appeals in affirming the judgment in Dennis,
coined the "not improbable" test, 183 F.2d 201,
214, which this Court adopted and which Judge
Hand preferred over the "clear and present danger"
test. Indeed, in his book, The Bill of Rights 59
(1958), in referring to Holmes' creation of the "clear
and present danger" test, he said, "I cannot help
thinking that for once Homer nodded."
My own view is quite different. I see no place
in the regime of the First Amendment for any "clear
and present danger" test, whether strict and tight as
some would make it, or free-wheeling as the Court
in Dennis rephrased it.
When one reads the opinions closely and sees
when and how the "clear and present danger" test
has been applied, great misgivings are aroused.
First, the threats were often loud but always puny
and made serious only by judges so wedded to the
status quo that critical analysis made them nervous.
Second, the test was so twisted and perverted in
Dennis as to make the trial of those teachers of
Marxism an all-out political trial which was part and
parcel of the cold war that has eroded substantial
parts of the First Amendment.
Action is often a method of expression and
within the protection of the First Amendment.
Suppose one tears up his own copy of the
Constitution in eloquent protest to a decision of this
Court. May he be indicted?
Suppose one rips his own Bible to shreds to
celebrate his departure from one "faith" and his
embrace of atheism. May he be indicted?
Last Term the Court held in United States v.
O'Brien, 391 U.S. 367, 382, that a registrant under
Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The
First Amendment was tendered as a defense and
rejected, the Court saying:
"The issuance of certificates indicating the registration and eligibility classification of individuals is a
legitimate and substantial administrative aid in the
functioning of this system. And legislation to insure
the continuing availability of issued certificates
serves a legitimate and substantial purpose in the
system's administration." 391 U.S., at 377-378.
But O'Brien was not prosecuted for not having
his draft card available when asked for by a federal
agent. He was indicted, tried, and convicted for
burning the card. And this Court's affirmance of that
conviction was not, with all respect, consistent with
the First Amendment.
The act of praying often involves body posture
and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause.
Picketing, as we have said on numerous occasions,
is "free speech plus." See Bakery Drivers Local v.
Wohl, 315 U.S. 769, 775 (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U.S.
490, 501; Hughes v. Superior Court, 339 U.S. 460,
465; Labor Board v. Fruit Packers, 377 U.S. 58,
77 (BLACK, J., concurring); and id., at 93 (HARLAN, J., dissenting); Cox v. Louisiana, 379 U.S.
559, 578 (opinion of BLACK, J.); Food Employees
v. Logan Plaza, 391 U.S. 308, 326 (DOUGLAS, J.,
concurring). That means that it can be regulated
when it comes to the "plus" or "action "side of the
protest. It can be regulated as to the number of
pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community
problems would otherwise suffer.
But none of these considerations are implicated
in the symbolic protest of the Vietnam war in the
burning of a draft card.
One's beliefs have long been thought to be
sanctuaries which government could not invade.
Barenblatt is one example of the ease with which
that sanctuary can be violated. The lines drawn by
the Court between the criminal act of being an "active" Communist and the innocent act of being a
nominal or inactive Communist mark the difference
only between deep and abiding belief and casual or
uncertain belief. But I think that all matters of belief
are beyond the reach of subpoenas or the probings
of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated
fault in the infamous loyalty-security hearings
which, since 1947 when President Truman
launched them, have processed 20,000,000 men
and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of
the First Amendment we have ever known.
139
The line between what is permissible and not
subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.
The example usually given by those who would
punish speech is the case of one who falsely shouts
fire in a crowded theatre.
This is, however, a classic case where speech
is brigaded with action. See Speiser v. Randall,
357 U.S. 513, 536-537 (DOUGLAS, J., concurring).
They are indeed inseparable and a prosecution can
be launched for the overt acts actually caused.
Apart from rare instances of that kind, speech is, I
think, immune from prosecution. Certainly there is
no constitutional line between advocacy of abstract
ideas as in Yates and advocacy of political action
as in Scales. The quality of advocacy turns on the
depth of the conviction; and government has no
power to invade that sanctuary of belief and conscience. 3
3 See MR. JUSTICE BLACK, dissenting,
in Communications Assn. v. Douds, 339
U.S. 382, 446, 449 et seq.
140
REFERENCES
16 Am Jur 2d, Constitutional Law 341 et seq.
US L Ed Digest, Constitutional Law 927
ALR Digests, Constitutional Law 792(1)
L Ed Index to Anno, Constitutional Law
ALR Quick Index, Freedom of Speech and Press
Annotation References:
The Supreme Court and the right of free speech
and press. 93 L Ed 1151, 2 L Ed 2d 1706, 11 L Ed
2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976.
Validity of legislation directed against political, social, or industrial propaganda deemed to be of a
dangerous tendency. 1 ALR 336, 20 ALR 1535, 73
ALR 1494.
Schenck v. U.S., 249 U.S. 47 (1919)
141
142
SCHENCK v. UNITED STATES; BAER v. UNITED STATES
Nos. 437, 438
SUPREME COURT OF THE UNITED STATES
249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470
Argued January 9, 10, 1919
March 3, 1919
PRIOR HISTORY: ERROR TO THE DISTRICT
COURT OF THE UNITED STATES FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants were convicted of conspiracy and other crimes under the
Espionage Act of June 15, 1917, 40 Stat. 217, 219,
for distributing leaflets that opposed the military
draft. Defendants appealed their convictions from
the District Court of the United States for the Eastern District of Pennsylvania on the basis that the
Espionage Act violated their First Amendment rights
to the freedom of speech and the freedom of the
press.
OVERVIEW: While the United States was at war,
defendants circulated leaflets that urged men to
refuse to submit to the draft into military service. For
attempting to obstruct military recruitment, defendants were convicted of crimes pursuant to the Espionage Act, 40 Stat. 217, 219. Defendants contended that the distribution of the leaflets was activity protected by the First Amendment. The Court
admitted that in many places and in ordinary times,
the distribution of the leaflets would have been
within defendants' constitutional rights. The Court
explained, however, that the character of protected
speech depended upon the circumstances in which
it was expressed. For example, the most stringent
protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. The question in every case was whether the
words were used in such circumstances and were
of such nature as to create a clear and present
danger that they would bring about the substantive
evils that Congress had a right to prevent. Because
Congress was within its power to punish activity
intended to obstruct the draft, the conviction of defendants did not violate the First Amendment.
OUTCOME: The Court affirmed the judgments that
upheld defendants' convictions.
LAWYERS' EDITION HEADNOTES:
Criminal law -- self-crimination -- search and
seizure. -Headnote:
Documentary evidence is not rendered inadmissible against defendants in a criminal case
merely because it was obtained upon a search
warrant, valid so far as appears.
[For other cases, see Criminal Law, III. b, 2;
Search and Seizure, in Digest Sup. Ct. 1908.]
Criminal law -- self-crimination -- evidence proceeding directly from defendant. -Headnote:
The protection against self-crimination afforded
by U. S. Const., 5th Amend., does not exclude in all
cases evidence which directly proceeds from the
defendant in a criminal proceeding.
[For other cases, see Criminal Law, III. b, 2;
Evidence, VIII. in Digest Sup. Ct. 1908.]
Conspiracy -- obstructing recruiting and enlistment service. -Headnote:
A conspiracy to distribute a circular denouncing
conscription in impassioned terms and vigorously
urging that opposition to the selective draft provided
for by the Act of May 18, 1917 (40 Stat. at L. 76,
chap. 15. Comp. Stat. 1918, 2044a), be asserted,
although in form confining itself to peaceful
measures, such as a petition for the repeal of the
act, falls within the condemnation of the provisions
of the Espionage Act of June 15, 1917 (40 Stat. at
L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3,
forbidding the causing or attempting to cause insubordination in the military and naval forces of the
143
United States, or the obstructing of the recruiting or
enlistment service of the United States when at war.
[For other cases, see Conspiracy, II. in Digest
Sup. Ct. 1908.]
Constitutional law -- freedom of speech and
press -- obstructing selective draft -- Espionage Act.
-Headnote:
The constitutional freedom of speech and press
was not infringed by the provisions of the Espionage Act of June 15, 1917 (40 Stat. at L. 219, chap.
30, Comp. Stat. 1918, 10,212c), 3, under which a
conviction may be had for a conspiracy which tends
to influence persons subject to the Selective Draft
Act of May 18, 1917 (40 Stat. at L. 76, chap. 15,
Comp. Stat. 1918, 2044a), to obstruct such draft,
even though in many places and in ordinary times
defendants, in saying all that was said in the circular, would have been within their constitutional
rights.
[For other cases, see Constitutional Law, IV. d,
in Digest Sup. Ct. 1908.]
Conspiracy -- to obstruct selective draft -- failure to accomplish illegal object. -Headnote:
A conspiracy to obstruct the recruiting or enlistment service of the United States when at war by
the distribution of a circular tending to incite such
obstruction may be made a crime, punishable as
such, as is done by the provisions of the Espionage
Act of June 15, 1917 (40 Stat. at L. 219, chap. 30,
Comp. Stat. 1918, 10,212c), 3, irrespective of the
success or failure of such conspiracy.
[For other cases, see Conspiracy, II. in Digest
Sup. Ct. 1908.]
Words which, ordinarily and in many places,
would be within the freedom of speech protected by
the First Amendment, may become subject to prohibition when of such a nature and used in such
circumstances as to create a clear and present
danger that they will bring about the substantive
evils which Congress has a right to prevent. The
character of every act depends upon the circumstances in which it is done. P. 51.
A conspiracy to circulate among men called and
accepted for military service under the Selective
Service Act of May 18, 1917, a circular tending to
influence them to obstruct the draft, with the intent
to effect that result, and followed by the sending of
such circulars is within the power of Congress to
punish, and is punishable under the Espionage Act,
§ 4, although unsuccessful. P. 52.
The word "recruiting" as used in the Espionage
Act, § 3, means the gaining of fresh supplies of men
for the military forces, as well by draft as otherwise.
P. 52.
The amendment of the Espionage Act by the
Act of May 16, 1918, c. 75, 40 Stat. 553, did not
affect the prosecution of offenses under the former.
P. 53.
Affirmed.
THE case is stated in the opinion.
COUNSEL: Mr. Henry John Nelson and Mr. Henry
J. Gibbons for plaintiffs in error.
Mr. John Lord O'Brian, Special Assistant to the Attorney General, with whom Mr. Alfred Bettman,
Special Assistant to the Attorney General, was on
the brief, for the United States.
JUDGES: White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
SYLLABUS
Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and
enlistment service, contrary to the Espionage Act of
June 15, 1917. P. 49.
Incriminating documents seized under a search
warrant directed against a Socialist headquarters,
held admissible in evidence, consistently with the
Fourth and Fifth Amendments, in a criminal prosecution against the general secretary of a Socialist
party, who had charge of the office. P. 50.
144
OPINION BY: HOLMES
OPINION
MR. JUSTICE HOLMES delivered the opinion
of the court.
This is an indictment in three counts. The first
charges a conspiracy to violate the Espionage Act
of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by
causing and attempting to cause insubordination,
&c., in the military and naval forces of the United
States, and to obstruct the recruiting and enlistment
service of the United States, when the United
States was at war with the German Empire, to-wit,
that the defendants wilfully conspired to have printed and circulated to men who had been called and
accepted for military service under the Act of May
18, 1917, a document set forth and alleged to be
calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance
of the conspiracy, ending in the distribution of the
document set forth. The second count alleges a
conspiracy to commit an offence against the United
States, to-wit, to use the mails for the transmission
of matter declared to be non-mailable by Title XII, §
2 of the Act of June 15, 1917, to-wit, the above
mentioned document, with an averment of the same
overt acts. The third count charges an unlawful
use of the mails for the transmission of the same
matter and otherwise as above. The defendants
were found guilty on all the counts. They set up
the First Amendment to the Constitution forbidding
Congress to make any law abridging the freedom of
speech, or of the press, and bringing the case here
on that ground have argued some other points also
of which we must dispose.
It is argued that the evidence, if admissible, was
not sufficient to prove that the defendant Schenck
was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge
of the Socialist headquarters from which the documents were sent. He identified a book found there
as the minutes of the Executive Committee of the
party. The book showed a resolution of August 13,
1917, that 15,000 leaflets should be printed on the
other side of one of them in use, to be mailed to
men who had passed exemption boards, and for
distribution. Schenck personally attended to the
printing. On August 20 the general secretary's report said "Obtained new leaflets from printer and
started work addressing envelopes" &c.; and there
was a resolve that Comrade Schenck be allowed $
125 for sending leaflets through the mail. He said
that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the
inner office which he said were printed on the other
side of the one sided circular and were there for
distribution. Other copies were proved to have
been sent through the mails to drafted men.
Without going into confirmatory details that were
proved, no reasonable man could doubt that the
defendant Schenck was largely instrumental in
sending the circulars about. As to the defendant
Baer there was evidence that she was a member of
the Executive Board and that the minutes of its
transactions were hers. The argument as to the
sufficiency of the evidence that the defendants
conspired to send the documents only impairs the
seriousness of the real defence.
It is objected that the documentary evidence
was not admissible because obtained upon a
search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U.S.
585; Weeks v. United States, 232 U.S. 383, 395,
396. The search warrant did not issue against the
defendant but against the Socialist headquarters at
1326 Arch Street and it would seem that the documents technically were not even in the defendants'
possession. See Johnson v. United States, 228
U.S. 457. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding
is excluded in all cases by the Fifth Amendment is
plainly unsound. Holt v. United States, 218 U.S.
245, 252, 253.
The document in question upon its first printed
side recited the first section of the Thirteenth
Amendment, said that the idea embodied in it was
violated by the Conscription Act and that a conscript
is little better than a [*51] convict. In impassioned language it intimated that conscription was
despotism in its worst form and a monstrous wrong
against humanity in the interest of Wall Street's
chosen few. It said "Do not submit to intimidation,"
but in form at least confined itself to peaceful
measures such as a petition for the repeal of the
act. The other and later printed side of the sheet
was headed "Assert Your Rights." It stated reasons
for alleging that any one violated the Constitution
when he refused to recognize "your right to assert
your opposition to the draft," and went on "If you do
not assert and support your rights, you are helping
to deny or disparage rights which it is the solemn
duty of all citizens and residents of the United
States to retain." It described the arguments on the
other side as coming from cunning politicians and a
mercenary capitalist press, and even silent consent
to the conscription law as helping to support an infamous conspiracy. It denied the power to send our
citizens away to foreign shores to shoot up the
people of other lands, and added that words could
not express the condemnation such cold-blooded
ruthlessness deserves, &c., &c., winding up "You
must do your share to maintain, support and uphold
the rights of the people of this country." Of course
the documents would not have been sent unless it
had been intended to have some effect, and we do
not see what effect it could be expected to have
upon persons subject to the draft except to influence them to obstruct the carrying of it out. The
145
defendants do not deny that the jury might find
against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First
Amendment to the Constitution.
Two of the
strongest expressions are said to be quoted respectively from well-known public men. It well may
be that the prohibition of laws abridging the freedom
of speech is not confined to previous restraints,
although to prevent them may have been the
main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We admit that in many
places and in ordinary times the defendants in saying all that was said in the circular would have been
within their constitutional rights. But the character
of every act depends upon the circumstances in
which it is done. Aikens v. Wisconsin, 195 U.S.
194, 205, 206. The most stringent protection of free
speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. It does not
even protect a man from an injunction against uttering words that may have all the effect of force.
Gompers v. Bucks Stove & Range Co., 221 U.S.
418, 439. The question in every case is whether the
words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is
a question of proximity and degree. When a nation
is at war many things that might be said in time of
peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight
and that no Court could regard them as protected
146
by any constitutional right. It seems to be admitted
that if an actual obstruction of the recruiting service
were proved, liability for words that produced that
effect might be enforced. The statute of 1917 in §
4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a
paper,) its tendency and the intent with which it is
done are the same, we perceive no ground for saying that success alone warrants making the act a
crime. Goldman v. United States, 245 U.S. 474,
477. Indeed that case might be said to dispose of
the present contention if the precedent covers all
media concludendi. But as the right to free speech
was not referred to specially, we have thought fit to
add a few words.
It was not argued that a conspiracy to obstruct
the draft was not within the words of the Act of
1917. The words are "obstruct the recruiting or
enlistment service," and it might be suggested that
they refer only to making it hard to get volunteers.
Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call
up that method only in our minds. But recruiting is
gaining fresh supplies for the forces, as well by draft
as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact
that the Act of 1917 was enlarged by the amending
Act of May 16, 1918, c. 75, 40 Stat. 553, of course,
does not affect the present indictment and would
not, even if the former act had been repealed.
Rev. Stats., § 13.
Judgments affirmed.
Tinker v. Des Moines Independent Community School
Dist., 393 U.S. 503 (1969)
147
148
TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY
SCHOOL DISTRICT ET AL.
No. 21
SUPREME COURT OF THE UNITED STATES
393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731
November 12, 1968, Argued
February 24, 1969, Decided
PRIOR HISTORY:
CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT.
DISPOSITION:
remanded.
383 F.2d 988, reversed and
CASE SUMMARY:
PROCEDURAL POSTURE: On writ of certiorari to
the United States Court of Appeals for the Fifth
Circuit, petitioner high school students challenged
the judgment affirming the district court's dismissal
of their 42 U.S.C.S. § 1983 civil rights action, upholding the constitutionality of respondent school
officials' suspension of petitioners for wearing black
armbands to school in protest of the Vietnam War.
OVERVIEW: Respondent school officials suspended petitioner students from public high school
because they wore black armbands to school in
protest of the Vietnam War. Petitioners sued respondents under 42 U.S.C.S. § 1983. The trial court
dismissed the complaint, upholding the constitutionality of respondents' action on the ground that it
was reasonable in order to prevent the disturbance
of school discipline. The circuit court affirmed. The
Supreme Court reversed because the wearing of
armbands was entirely divorced from actually or
potentially disruptive conduct by those that participated in it. Petitioners' conduct was closely akin to
pure speech which was entitled to comprehensive
protection under the First Amendment, absent facts
that might reasonably have led school officials to
forecast substantial disruption of or material interference with school activities.
OUTCOME: The Court reversed the dismissal of
the high school students' civil rights complaint
against school officials.
SUMMARY:
As part of a plan formulated by a group of
adults and students in Des Moines, Iowa, the petitioners, two public high school students and one
junior high school student, wore black armbands to
their schools to publicize their objections to the hostilities in Vietnam and their support for a truce, despite the fact that they were aware that the school
authorities a few days previously had adopted a
policy or regulation that any student wearing an
armband to school would be asked to remove it,
and if he refused would be suspended until he returned without the armband. As a result the petitioners were all sent home and suspended from
school until they would come back without their
armbands. The petitioners, through their fathers,
then filed a complaint in the United States District
Court for the Southern District of Iowa, praying for
an injunction restraining the school authorities from
disciplining the petitioners, and seeking nominal
damages. After an evidentiary hearing, the District
Court dismissed the complaint, upholding the constitutionality of the school authorities' action on the
ground that it was reasonable in order to prevent
disturbance of school discipline. (258 F Supp 971.)
On appeal, the United States Court of Appeals for
the Eighth Circuit affirmed without opinion. (383
F2d 988.)
On certiorari, the United States Supreme Court
reversed and remanded. In an opinion by Fortas, J.,
expressing the view of seven members of the court,
it was held that the wearing of armbands in the circumstances of the case was entirely divorced from
actually or potentially disruptive conduct by those
participating in it, and as such was closely akin to
"pure speech" which is entitled to comprehensive
protection under the First Amendment, and that the
school regulation prohibiting students from thus
149
wearing the armbands violated the students' rights
of free speech under the First Amendment, where
there was no evidence that the authorities had reason to anticipate that the wearing of the armbands
would substantially interfere with the work of the
school or impinge upon the rights of other students,
but on the contrary it appeared that the authorities'
action was based upon an urgent wish to avoid the
controversy which might result from the expression
symbolized by the armbands, and that the particular
symbol of black armbands was singled out for prohibition.
Stewart, J., concurred in the judgment and most
of the court's opinion, but said that he could not
share the court's uncritical assumption that, school
discipline aside, the First Amendment rights of children are coextensive with those of adults, adhering
to his view that a state may permissibly determine
that, at least in some precisely delineated areas, a
child--like someone in a captive audience--is not
possessed of that full capacity for individual choice
which is the presupposition of First Amendment
guaranties.
White, J., concurred, noting that the court continues to recognize a distinction between communicating by words and communicating by acts or
conduct which sufficiently impinge on some valid
state interests, but that he did not subscribe to everything said about free speech in a case relied upon
by the court in its opinion.
Black, J., dissented on the grounds that (1) the
court arrogated to itself, rather than to the state's
elected school officials, the decision as to which
school disciplinary regulations are "reasonable"; (2)
the case, wholly without constitutional reasons,
subjects all the public schools in the country to the
whims and caprices of their loudest-mouthed, but
maybe not their brightest students; and (3) the court
should have accorded the Iowa educational institutions the right to determine for themselves what free
expression and no more should be allowed, where
the record amply showed that public protest in the
school classes against the Vietnam war "distracted
from that singleness of purpose which the state desired to exist in its public education institutions."
Harlan, J., dissented, saying that he would, in
cases like the instant one, cast upon those complaining the burden of showing that a particular
school measure was motivated by other than legitimate school concerns, and that he could find nothing in the record which impugned the good faith of
the defendant school authorities in promulgating the
armband regulation.
150
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
CONSTITUTIONAL LAW §925.7
freedom of speech -- students' wearing of armbands -Headnote:[1]
Public school students' wearing, in violation of a
school regulation, of black armbands during school
hours as a symbolic act to publicize their objections
to the hostilities in Vietnam and their support for a
truce is entirely divorced from actually or potentially
disruptive conduct by those participating in it, and
as such is closely akin to "pure speech" which is
entitled to comprehensive protection under the First
Amendment.
[***LEdHN2]
CONSTITUTIONAL LAW §925
freedom of speech -- teachers and students -Headnote:[2]
First Amendment rights of freedom of speech
expression, applied in light of the special characteristics of the school environment, are available to
teachers and students, and neither students nor
teachers shed such rights at the schoolhouse gate.
[***LEdHN3]
CONSTITUTIONAL LAW §8
SCHOOLS §1
conditions
guaranties --
on
attendance
--
constitutional
Headnote:[3A][3B]
A state may not impose and enforce any conditions that it chooses upon attendance at public institutions of learning, however violative they may be
of fundamental constitutional guaranties.
[***LEdHN4]
CONSTITUTIONAL LAW §925.7
freedom of speech -- students' wearing of armbands -Headnote:[4]
The problem presented by public school students' wearing, in violation of a school regulation, of
black armbands during school hours as a symbolic
act to publicize their objections to the hostilities in
Vietnam and their support for a truce, does not
concern aggressive, disruptive action or even group
demonstrations, but involves direct, primary First
Amendment rights akin to "pure speech."
[***LEdHN5]
CONSTITUTIONAL LAW §925.7
freedom of speech -- students' wearing of armbands -Headnote:[5]
Public school authorities' undifferentiated fear
or apprehension of disturbance from students'
wearing of black armbands during school hours to
publicize their objections to the hostilities in Vietnam and their support for a truce, is not enough to
overcome the students' right to freedom of expression; but the Federal Constitution requires that the
risk be taken that any departure from absolute
regimentation may cause trouble, that any variation
from the majority's opinion may inspire fear, and
that any word spoken in class, in the lunchroom, or
on the campus, that deviates from the views of another person, may start an argument or cause a
disturbance.
[***LEdHN6]
CONSTITUTIOINAL LAW §928
and substantially interfere with the requirements of
appropriate discipline in the operation of the school.
[***LEdHN8]
CONSTITUTIONAL LAW §925.7
freedom of speech -- school regulation -- students' wearing of armbands -Headnote:[8A][8B]
A regulation issued by public school authorities
prohibiting students from wearing black armbands
during school hours to publicize their objections to
the hostilities in Vietnam and their support for a
truce, violates the students' constitutional rights to
free speech under the First Amendment, where
there was no evidence that the school authorities
had reason to anticipate that the wearing of the
armbands would substantially interfere with the
work of the school or impinge upon the rights of
other students or that the prohibition was necessary
to avoid material and substantial interference with
school-work or discipline, but on the contrary the
action of the school authorities appeared to have
been based upon an urgent wish to avoid the controversy which might result from the expression,
even by the silent symbol of armbands, of opposition to the United States' involvement in Vietnam,
and where the school authorities did not purport to
prohibit the wearing of all symbols of political or
controversial significance but instead singled out
the black armbands in question.
freedom of speech -- school prohibition -Headnote:[6]
In order for the state in the person of school officials to justify prohibition of a particular expression
of opinion under the First Amendment, it must be
able to show that its action was caused by something more than a mere desire to avoid discomfort
and unpleasantness that always accompany an
unpopular viewpoint.
[***LEdHN7]
CONSTITUTIONAL LAW §928
freedom of speech -- school prohibition -Headnote:[7]
A prohibition by the state in the person of
school officials, of a particular expression of opinion, cannot be sustained under the First Amendment, where there is no finding and no showing that
the exercise of the forbidden right would materially
[***LEdHN9]
SCHOOLS §1
authority over students -Headnote:[9]
State-operated schools may not be enclaves of
totalitarianism, and school officials do not possess
absolute authority over their students.
[***LEdHN10]
CONSTITUTIONAL LAW §8
SCHOOLS §1
students' rights -Headnote:[10]
Students in state-operated schools, as well as
out of school, are "persons" under the Federal Constitution, and are possessed of fundamental rights
151
which the state must respect, just as they themselves must respect their obligations to the state.
[***LEdHN11]
CONSTITUTIONAL LAW §925
freedom of speech -- state school students -Headnote:[11]
Students in state-operated schools may not be
regarded as "closed-circuit" recipients of only that
which the state chooses to communicate, and may
not be confined to the expression of those sentiments that are officially approved.
[***LEdHN12]
CONSTITUTIONAL LAW §925
freedom of speech -- state school students -Headnote:[12]
In the absence of a specific showing of constitutionally valid reasons to regulate their speech,
students in state-operated schools are entitled to
freedom of expression of their views.
[***LEdHN13]
CONSTITUTIONAL LAW §928
freedom of speech -- suppression -- school officials -Headnote:[13]
Under the First Amendment, state school officials cannot suppress expression of feelings with
which they do not wish to contend.
[***LEdHN14]
CONSTITUTIONAL LAW §8
SCHOOLS §1
freedoms -Headnote:[14]
The vigilant protection of constitutional freedoms is nowhere more vital than in the community
of American schools.
[***LEdHN15]
CONSTITUTIONAL LAW §925
freedom of speech -- students -Headnote:[15]
152
The principle that the vigilant protection of constitutional freedoms is nowhere more vital than in
the community of American schools, is not confined
to the supervised and ordained discussion which
takes place in the classroom, but extends to such
activities as personal intercommunication among
the students.
[***LEdHN16]
CONSTITUTIONAL LAW §925
freedom of speech -- students -Headnote:[16]
A student's constitutional rights of freedom of
speech do not embrace merely the classroom
hours, but when he is in the cafeteria, or on the
playing field, or on the campus during the authorized hours, he may express opinions, even on controversial subjects, if he does so without materially
and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others.
[***LEdHN17]
CONSTITUTIONAL LAW §925.8
freedom of speech -- students -Headnote:[17]
Conduct by a student, in class or out of it, which
for any reason--whether it stems from time, place,
or type of behavior--materially disrupts classwork or
involves substantial disorder or invasion of the
rights of others, is not immunized by the constitutional guaranty of freedom of speech.
[***LEdHN18]
CONSTITUTIONAL LAW §925
freedom of speech -Headnote:[18]
Under the Federal Constitution, free speech is
not a right that is given only to be so circumscribed
that it exists in principle but not in fact.
[***LEdHN19]
CONSTITUTIONAL LAW §925
freedom of speech -Headnote:[19]
Freedom of expression does not truly exist if
the right can be exercised only in an area that a
benevolent government has provided as a safe haven for crackpots.
[***LEdHN20]
CONSTITUTIONAL LAW §925
free speech -- regulation -Headnote:[20]
The First Amendment to the Federal Constitution
permits
reasonable
regulation
of
speech-connected activities in carefully restricted
circumstances.
[***LEdHN21]
CONSTITUTIONAL LAW §925
free speech -- exercise -Headnote:[21]
The permissible exercise of First Amendment
rights of free speech is not confined to a telephone
booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school
classroom.
[***LEdHN22]
sitting en banc, affirmed by an equally divided court.
Held:
1. In wearing armbands, the petitioners were
quiet and passive. They were not disruptive and
did not impinge upon the rights of others. In these
circumstances, their conduct was within the protection of the Free Speech Clause of the First
Amendment and the Due Process Clause of the
Fourteenth. Pp. 505-506.
2. First Amendment rights are available to
teachers and students, subject to application in light
of the special characteristics of the school environment. Pp. 506-507.
3. A prohibition against expression of opinion,
without any evidence that the rule is necessary to
avoid substantial interference with school discipline
or the rights of others, is not permissible under the
First and Fourteenth Amendments. Pp. 507-514.
COUNSEL: Dan L. Johnston argued the cause for
petitioners. With him on the brief were Melvin L.
Wulf and David N. Ellenhorn.
Allan A. Herrick argued the cause for respondents.
With him on the brief were Herschel G. Langdon
and David W. Belin.
CONSTITUTIONAL LAW §925
freedom of speech -- school regulation -Headnote:[22]
If a regulation adopted by school officials forbids discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere
on school property except as part of a prescribed
classroom exercise, it violates constitutional rights
of students, at least if it cannot be justified by
showing that the students' activities would materially and substantially disrupt the work and discipline
of the school.
SYLLABUS
Petitioners, three public school pupils in Des
Moines, Iowa, were suspended from school for
wearing black armbands to protest the Government's policy in Vietnam. They sought nominal
damages and an injunction against a regulation that
the respondents had promulgated banning the
wearing of armbands. The District Court dismissed
the complaint on the ground that the regulation was
within the Board's power, despite the absence of
any finding of substantial interference with the conduct of school activities. The Court of Appeals,
Charles Morgan, Jr., filed a brief for the United
States National Student Association, as amicus curiae, urging reversal.
JUDGES: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, Marshall
OPINION BY: FORTAS
OPINION
MR. JUSTICE FORTAS delivered the opinion
of the Court.
Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner
Mary Beth Tinker, John's sister, was a 13-year-old
student in junior high school.
In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt
home. The group determined to publicize their
objections to the hostilities in Vietnam and their
support for a truce by wearing black armbands during the holiday season and by fasting on December
16 and New Year's Eve. Petitioners and their par-
153
ents had previously engaged in similar activities,
and they decided to participate in the program.
The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy
that any student wearing an armband to school
would be asked to remove it, and if he refused he
would be suspended until he returned without the
armband. Petitioners were aware of the regulation
that the school authorities adopted.
On December 16, Mary Beth and Christopher
wore black armbands to their schools. John Tinker
wore his armband the next day. They were all sent
home and suspended from school until they would
come back without their armbands. They did not
return to school until after the planned period for
wearing armbands had expired -- that is, until after
New Year's Day.
This complaint was filed in the United States
District Court by petitioners, through their fathers,
under § 1983 of Title 42 of the United States Code.
It prayed for an injunction restraining the respondent school officials and the respondent members of
the board of directors of the school district from disciplining the petitioners, and it sought nominal
damages. After an evidentiary hearing the District
Court dismissed the complaint. It upheld the
constitutionality of the school authorities' action on
the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F.Supp.
971 (1966). The court referred to but expressly declined to follow the Fifth Circuit's holding in a similar
case that the wearing of symbols like the armbands
cannot be prohibited unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school."
Burnside v. Byars, 363 F.2d 744, 749 (1966). 1
1 In Burnside, the Fifth Circuit ordered that
high school authorities be enjoined from enforcing a regulation forbidding students to
wear "freedom buttons." It is instructive that
in Blackwell v. Issaquena County Board of
Education, 363 F.2d 749 (1966), the same
panel on the same day reached the opposite
result on different facts. It declined to enjoin
enforcement of such a regulation in another
high school where the students wearing
freedom buttons harassed students who did
not wear them and created much disturbance.
On appeal, the Court of Appeals for the
Eighth Circuit considered the case en banc. The
154
court was equally divided, and the District Court's
decision was accordingly affirmed, without opinion.
383 F.2d 988 (1967). We granted certiorari. 390
U.S. 942 (1968).
I.
[***LEdHR1] [1]The District Court recognized that
the wearing of an armband for the purpose of expressing certain views is the type of symbolic act
that is within the Free Speech Clause of the First
Amendment. See West Virginia v. Barnette, 319
U.S. 624 (1943); Stromberg v. California, 283 U.S.
359 (1931).Cf. Thornhill v. Alabama, 310 U.S. 88
(1940); Edwards v. South Carolina, 372 U.S. 229
(1963); Brown v. Louisiana, 383 U.S. 131 (1966).
As we shall discuss, the wearing of armbands in the
circumstances of this case was entirely divorced
from actually or potentially disruptive conduct by
those participating in it. It was closely akin to "pure
speech" [*506] which, we have repeatedly held,
is entitled to comprehensive protection under the
First Amendment. Cf.
Cox v. Louisiana, 379
U.S. 536, 555 (1965); Adderley v. Florida, 385
U.S. 39 (1966).
[***LEdHR2] [2] [***LEdHR3A] [3A]First Amendment rights, applied in light of the special characteristics of the school environment, are available to
teachers and students. It can hardly be argued
that either students or teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.
In Meyer v. Nebraska, 262 U.S. 390 (1923), and
Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in
opinions by Mr. Justice McReynolds, held that the
Due Process Clause of the Fourteenth Amendment
prevents States from forbidding the teaching of a
foreign language to young students. Statutes to
this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent.
2
See also Pierce v. Society of Sisters, 268 U.S.
510 (1925); West Virginia v. Barnette, 319 U.S.
624 (1943); McCollum v. Board of Education,
333 U.S. 203 (1948); Wieman v. Updegraff, 344
U.S. 183, 195 (1952) (concurring opinion);
Sweezy v. New Hampshire, 354 U.S. 234 (1957);
Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421 (1962); Keyishian v.
Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas, ante, p. 97 (1968).
[***LEdHR3B] [3B]
2
Hamilton v. Regents of Univ. of Cal.,
293 U.S. 245 (1934), is sometimes cited for
the broad proposition that the State may attach conditions to attendance at a state university that require individuals to violate their
religious convictions. The case involved
dismissal of members of a religious denomination from a land grant college for refusal to
participate in military training.
Narrowly
viewed, the case turns upon the Court's conclusion that merely requiring a student to
participate in school training in military "science" could not conflict with his constitutionally protected freedom of conscience. The
decision cannot be taken as establishing that
the State may impose and enforce any conditions that it chooses upon attendance at
public institutions of learning, however violative they may be of fundamental constitutional guarantees. See, e. g., West Virginia
v. Barnette, 319 U.S. 624 (1943); Dixon v.
Alabama State Board of Education, 294 F.2d
150 (C. A. 5th Cir. 1961); Knight v. State
Board of Education, 200 F.Supp. 174 (D. C.
M. D. Tenn. 1961); Dickey v. Alabama
State Board of Education, 273 F.Supp. 613
(D. C. M. D. Ala. 1967). See also Note, Unconstitutional Conditions, 73 Harv. L. Rev.
1595 (1960); Note, Academic Freedom, 81
Harv. L. Rev. 1045 (1968).
In West Virginia v. Barnette, supra, this Court
held that under the First Amendment, the student in
public school may not be compelled to salute the
flag. Speaking through Mr. Justice Jackson, the
Court said:
"The Fourteenth Amendment, as now applied to
the States, protects the citizen against the State
itself and all of its creatures -- Boards of Education
not excepted. These have, of course, important,
delicate, and highly discretionary functions, but
none that they may not perform within the limits of
the Bill of Rights. That they 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 government as mere platitudes." 319 U.S., at
637.
On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive
authority of the States and of school officials, consistent with fundamental constitutional safeguards,
to prescribe and control conduct in the schools.
See Epperson v. Arkansas, supra, at 104; Meyer
v. Nebraska, supra, at 402. Our problem lies in the
area where students in the exercise of First
Amendment rights collide with the rules of the
school authorities.
II.
[***LEdHR4] [4]The problem posed by the present case does not relate to regulation of the length
of skirts or the type of clothing, 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."
The school officials banned and sought to punish petitioners for a silent, passive expression of
opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here
no evidence whatever of petitioners' interference,
actual or nascent, with the schools' work or of collision with the rights of other students to be secure
and to be let alone. Accordingly, this case does
not concern speech or action that intrudes upon the
work of the schools or the rights of other students.
Only a few of the 18,000 students in the school
system wore the black armbands. Only five students were suspended for wearing them. There is
no indication that the work of the schools or any
class was disrupted. Outside the classrooms, a
few students made hostile remarks to the children
wearing armbands, but there were no threats or
acts of violence on school premises.
[***LEdHR5] [5]The District Court concluded
that the action of the school authorities was reasonable because it was based upon their fear of a
disturbance from the wearing of the armbands. But,
in our system, undifferentiated fear or apprehension
of disturbance is not enough to overcome the right
to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear.
Any word spoken, in class, in the lunchroom, or on
the campus, that deviates from the views of another
person may start an argument or cause a disturbance. But our Constitution says we must take this
risk, Terminiello v. Chicago, 337 U.S. 1 (1949);
and our history says that it is this sort of hazardous
freedom -- this kind of openness -- that is the basis
of our national strength and of the independence
155
and vigor of Americans who grow up and live in this
relatively permissive, often disputatious, society.
[***LEdHR6] [6] [***LEdHR7] [7]In order for the
State in the person of school officials to justify prohibition of a particular expression of opinion, it must
be able to show that its action was caused by
something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where
there is no finding and no showing that engaging in
the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the
prohibition cannot be sustained. Burnside v. Byars,
supra, at 749.
In the present case, the District Court made no
such finding, and our independent examination of
the record fails to yield evidence that the school
authorities had reason to anticipate that the wearing
of the armbands would substantially interfere with
the work of the school or impinge upon the rights of
other students. Even an official memorandum
prepared after the suspension that listed the reasons for the ban on wearing the armbands made no
reference
[***LEdHR8A] [8A] to the anticipation of such
disruption. 3
3 The only suggestions of fear of disorder
in the report are these:
"A former student of one of our high
schools was killed in Viet Nam. Some of his
friends are still in school and it was felt that if
any kind of a demonstration existed, it might
evolve into something which would be difficult to control."
"Students at one of the high schools
were heard to say they would wear arm
bands of other colors if the black bands prevailed."
Moreover, the testimony of school authorities at trial indicates that it was not fear
of disruption that motivated the regulation
prohibiting the armbands; the regulation was
directed against "the principle of the demonstration" itself. School authorities simply felt
that "the schools are no place for demonstrations," and if the students "didn't like the way
our elected officials were handling things, it
should be handled with the ballot box and
not in the halls of our public schools."
156
On the contrary, the action of the school authorities appears to have been based upon an urgent
wish to avoid the controversy which might result
from the expression, even by the silent symbol of
armbands, of opposition to this Nation's part in the
conflagration in Vietnam. 4 It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was
called in response to a student's statement to the
journalism teacher in one of the schools that he
wanted to write an article on Vietnam and have it
published in the school paper. (The student was
dissuaded. 5)
4 The District Court found that the school
authorities, in prohibiting black armbands,
were influenced by the fact that "the Viet
Nam war and the involvement of the United
States therein has been the subject of a major controversy for some time. When the
arm band regulation involved herein was
promulgated, debate over the Viet Nam war
had become vehement in many localities. A
protest march against the war had been recently held in Washington, D. C. A wave of
draft card burning incidents protesting the
war had swept the country. At that time two
highly publicized draft card burning cases
were pending in this Court. Both individuals
supporting the war and those opposing it
were quite vocal in expressing their views."
258 F.Supp., at 972-973.
5 After the principals' meeting, the director
of secondary education and the principal of
the high school informed the student that the
principals were opposed to publication of his
article. They reported that "we felt that it
was a very friendly conversation, although
we did not feel that we had convinced the
student that our decision was a just one."
It is also relevant that the school authorities did
not purport to prohibit the wearing of all symbols of
political or controversial significance. The record
shows that students in some of the schools wore
buttons relating to national political campaigns, and
some even wore the Iron Cross, traditionally a
symbol of Nazism.
The order prohibiting the
wearing of armbands did not extend to these. Instead, a particular symbol -- black armbands worn
to exhibit opposition to this Nation's involvement in
Vietnam -- was singled out for prohibition. Clearly,
the prohibition of expression of one particular opinion, at least without evidence that it is necessary to
avoid material and substantial interference with
schoolwork or discipline,
permissible.
is not constitutionally
[***LEdHR9]
[9] [***LEdHR10]
[10]
[***LEdHR11]
[11]
[***LEdHR12]
[12]
[***LEdHR13] [13]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.
As Judge Gewin,
speaking for the Fifth Circuit, said, school officials
cannot suppress "expressions of feelings with which
they do not wish to contend." Burnside v. Byars,
supra, at 749.
In Meyer v. Nebraska, supra, at 402, Mr. Justice McReynolds expressed this Nation's repudiation of the principle that a State might so conduct its
schools as to "foster a homogeneous people." He
said:
"In order to submerge the individual and develop
ideal citizens, Sparta assembled the males at seven
into barracks and intrusted their subsequent education and training to official guardians. Although
such measures have been deliberately approved by
men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest;
and it hardly will be affirmed that any legislature
could impose such restrictions upon the people of a
State without doing violence to both letter and spirit
of the Constitution."
[***LEdHR14] [14]This principle has been repeated by this Court on numerous occasions during
the intervening years. In Keyishian v. Board of
Regents, 385 U.S. 589, 603, MR. JUSTICE
BRENNAN, speaking for the Court, said:
"'The vigilant protection of constitutional freedoms is
nowhere more vital than in the community of Amer-
ican schools.' Shelton v. Tucker, [364 U.S. 479,] at
487. The classroom is peculiarly the 'marketplace
of ideas.' The Nation's future depends upon leaders
trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of
authoritative selection.'"
[***LEdHR15]
[15]
[***LEdHR16]
[16]
[***LEdHR17] [17]The principle of these cases is
not confined to the supervised and ordained discussion which takes place in the classroom. The
principal use to which the schools are dedicated is
to accommodate students during prescribed hours
for the purpose of certain types of activities.
Among those activities is personal intercommunication among the students. 6 This is not only an inevitable part of the process of attending school; it is
also an important part of the educational process.
A student's rights, therefore, do not embrace merely
the classroom hours. When he is in the cafeteria,
or on the playing field, or on the campus during the
authorized hours, he may express his opinions,
even on controversial subjects like the conflict in
Vietnam, if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school"
and without colliding with the rights of others.
Burnside v. Byars, supra, at 749. But conduct by
the student, in class or out of it, which for any
reason -- whether it stems from time, place, or type
of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights
of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf.
Blackwell v. Issaquena County Board of Education,
363 F.2d 749 (C. A. 5th Cir. 1966).
6
In Hammond v. South Carolina State
College, 272 F.Supp. 947 (D. C. S. C. 1967),
District Judge Hemphill had before him a
case involving a meeting on campus of 300
students to express their views on school
practices. He pointed out that a school is
not like a hospital or a jail enclosure. Cf.
Cox v. Louisiana, 379 U.S. 536 (1965);
Adderley v. Florida, 385 U.S. 39 (1966). It is
a public place, and its dedication to specific
uses does not imply that the constitutional
rights of persons entitled to be there are to
be gauged as if the premises were purely
private property. Cf.
Edwards v. South
Carolina, 372 U.S. 229 (1963); Brown v.
Louisiana, 383 U.S. 131 (1966).
157
[***LEdHR18]
[18] [***LEdHR19]
[19]
[***LEdHR20] [20] [***LEdHR21] [21]Under our
Constitution, free speech is not a right that is given
only to be so circumscribed that it exists in principle
but not in fact. Freedom of expression would not
truly exist if the right could be exercised only in an
area that a benevolent government has provided as
a safe haven for crackpots. The Constitution says
that Congress (and the States) may not abridge the
right to free speech. This provision means what it
says. We properly read it to permit reasonable
regulation of speech-connected activities in carefully restricted circumstances. But we do not confine
the permissible exercise of First Amendment rights
to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a
school classroom.
[***LEdHR8B] [8B] [***LEdHR22] [22]If a regulation were adopted by school officials forbidding
discussion of the Vietnam conflict, or the expression
by any student of opposition to it anywhere on
school property except as part of a prescribed
classroom exercise, it would be obvious that the
regulation would violate the constitutional rights of
students, at least if it could not be justified by a
showing that the students' activities would materially and substantially disrupt the work and discipline
of the school. Cf. Hammond v. South Carolina
State College, 272 F.Supp. 947 (D. C. S. C. 1967)
(orderly protest meeting on state college campus);
Dickey v. Alabama State Board of Education, 273
F.Supp. 613 (D. C. M. D. Ala. 1967) (expulsion of
student editor of college newspaper). In the circumstances of the present case, the prohibition of
the silent, passive "witness of the armbands," as
one of the children called it, is no less offensive to
the Constitution's guarantees.
As we have discussed, the record does not
demonstrate any facts which might reasonably have
led school authorities to forecast substantial disruption of or material interference with school activities,
and no disturbances or disorders on the school
premises in fact occurred.
These petitioners
merely went about their ordained rounds in school.
Their deviation consisted only in wearing on their
sleeve a band of black cloth, not more than two
inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy
of a truce, to make their views known, and, by their
example, to influence others to adopt them. They
neither interrupted school activities nor sought to
intrude in the school affairs or the lives of others.
They caused discussion outside of the classrooms,
but no interference with work and no disorder. In
158
the circumstances, our Constitution does not permit
officials of the State to deny their form of expression.
We express no opinion as to the form of relief
which should be granted, this being a matter for the
lower courts to determine. We reverse and remand for further proceedings consistent with this
opinion.
Reversed and remanded.
CONCUR BY: STEWART; WHITE
CONCUR
MR. JUSTICE STEWART, concurring.
Although I agree with much of what is said in
the Court's opinion, and with its judgment in this
case, I cannot share the Court's uncritical assumption that, school discipline aside, the First Amendment rights of children are co-extensive with those
of adults. Indeed, I had thought the Court decided
otherwise just last Term in Ginsberg v. New York,
390 U.S. 629. I continue to hold the view I expressed in that case: "[A] State may permissibly
determine that, at least in some precisely delineated areas, a child -- like someone in a captive audience -- is not possessed of that full capacity for individual choice which is the presupposition of First
Amendment guarantees." Id., at 649-650 (concurring in result). Cf. Prince v. Massachusetts, 321
U.S. 158.
MR. JUSTICE WHITE, concurring.
While I join the Court's opinion, I deem it appropriate to note, first, that the Court continues to
recognize a distinction between communicating by
words and communicating by acts or conduct which
sufficiently impinges on some valid state interest;
and, second, that I do not subscribe to everything
the Court of Appeals said about free speech in its
opinion in Burnside v. Byars, 363 F.2d 744, 748
(C. A. 5th Cir. 1966), a case relied upon by the
Court in the matter now before us.
DISSENT BY: BLACK; HARLAN
DISSENT
MR. JUSTICE BLACK, dissenting.
The Court's holding in this case ushers in what I
deem to be an entirely new era in which the power
to control pupils by the elected "officials of state
supported public schools . . ." in the United States is
in ultimate effect transferred to the Supreme Court.
1
The Court brought [*516] this particular case
here on a petition for certiorari urging that the First
and Fourteenth Amendments protect the right of
school pupils to express their political views all the
way "from kindergarten through high school." Here
the constitutional right to "political expression" asserted was a right to wear black armbands during
school hours and at classes in order to demonstrate
to the other students that the petitioners were
mourning because of the death of United States
soldiers in Vietnam and to protest that war which
they were against. Ordered to refrain from wearing
the armbands in school by the elected school officials and the teachers vested with state authority to
do so, apparently only seven out of the school system's 18,000 pupils deliberately refused to obey the
order. One defying pupil was Paul Tinker, 8 years
old, who was in the second grade; another, Hope
Tinker, was 11 years old and in the fifth grade; a
third member of the Tinker family was 13, in the
eighth grade; and a fourth member of the same
family was John Tinker, 15 years old, an 11th grade
high school pupil. Their father, a Methodist minister
without a church, is paid a salary by the American
Friends Service Committee. Another student who
defied the school order and insisted on wearing an
armband in school was Christopher Eckhardt, an
11th grade pupil and a petitioner in this case. His
mother is an official in the Women's International
League for Peace and Freedom.
1 The petition for certiorari here presented
this single question:
"Whether the First and Fourteenth
Amendments permit officials of state supported public schools to prohibit students
from wearing symbols of political views within school premises where the symbols are
not disruptive of school discipline or decorum."
As I read the Court's opinion it relies upon the
following grounds for holding unconstitutional the
judgment of the Des Moines school officials and the
two courts below. First, the Court concludes that
the wearing of armbands is "symbolic speech"
which is "akin to 'pure speech'" and therefore protected by the First and Fourteenth Amendments.
Secondly, the Court decides that the public schools
are an appropriate place to exercise "symbolic
speech" as long as normal school functions are
not "unreasonably" disrupted. Finally, the Court
arrogates to itself, rather than to the State's elected
officials charged with running the schools, the deci-
sion as to which school disciplinary regulations are
"reasonable."
Assuming that the Court is correct [***744] in
holding that the conduct of wearing armbands for
the purpose of conveying political ideas is protected
by the First Amendment, cf., e. g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), the
crucial remaining questions are whether students
and teachers may use the schools at their whim as
a platform for the exercise of free speech -- "symbolic" or "pure" -- and whether the courts will allocate to themselves the function of deciding how the
pupils' school day will be spent. While I have always believed that under the First and Fourteenth
Amendments neither the State nor the Federal
Government has any authority to regulate or censor
the content of speech, I have never believed that
any person has a right to give speeches or engage
in demonstrations where he pleases and when he
pleases. This Court has already rejected such a
notion. In Cox v. Louisiana, 379 U.S. 536, 554
(1965), for example, the Court clearly stated that
the rights of free speech and assembly "do not
mean that everyone with opinions or beliefs to express may address a group at any public place and
at any time."
While the record does not show that any of
these armband students shouted, used profane
language, or were violent in any manner, detailed
testimony by some of them shows their armbands
caused comments, warnings by other students, the
poking of fun at them, and a warning by an older
football player that other, nonprotesting students
had better let them alone. There is also evidence
that a teacher of mathematics had his lesson period
practically "wrecked" chiefly by disputes with Mary
Beth Tinker, who wore her armband for her
"demonstration." Even a casual reading of the record shows that this armband did divert students'
minds from their regular lessons, and that talk,
comments, etc., made John Tinker "self-conscious"
in attending school with his armband. 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
159
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. The next logical step, it appears
to me, would be to hold unconstitutional laws that
bar pupils under 21 or 18 from voting, or from being
elected members of the boards of education. 2
2
The following Associated Press article
appeared in the Washington Evening Star,
January 11, 1969, p. A-2, col. 1:
"BELLINGHAM, Mass. (AP) -- Todd R.
Hennessy, 16, has filed nominating papers to
run for town park commissioner in the March
election.
"'I can see nothing illegal in the youth's
seeking the elective office,' said Lee Ambler,
the town counsel. 'But I can't overlook the
possibility that if he is elected any legal contract entered into by the park commissioner
would be void because he is a juvenile.'
"Todd is a junior in Mount St. Charles
Academy, where he has a top scholastic
record."
The United States District Court refused to
hold that the state school order violated the First
and Fourteenth Amendments. 258 F.Supp. 971.
Holding that the protest was akin to speech, which
is protected by the First and Fourteenth Amendments, that court held that the school order was
"reasonable" and hence constitutional. There was
at one time a line of cases holding "reasonableness" as the court saw it to be the test of a "due
process" violation. Two cases upon which the
Court today heavily relies for striking down this
school order used this test of reasonableness,
Meyer v. Nebraska, 262 U.S. 390 (1923), and
Bartels v. Iowa, 262 U.S. 404 (1923). The opinions
in both cases were written by Mr. Justice McReynolds; Mr. Justice Holmes, who opposed this reasonableness test, dissented from the holdings as
did Mr. Justice Sutherland. This constitutional test
of reasonableness prevailed in this Court for a
season. It was this test that brought on President
Franklin Roosevelt's well-known Court fight. His
proposed legislation did not pass, but the fight left
the "reasonableness" constitutional test dead on the
battlefield, so much so that this Court in Ferguson
v. Skrupa, 372 U.S. 726, 729, 730, after a thorough
review of the old cases, was able to conclude in
1963:
"There was a time when the Due Process
Clause was used by this Court to strike down laws
160
which were thought unreasonable, that is, unwise or
incompatible with some particular economic or social philosophy.
....
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases -- that due
process authorizes courts to hold laws unconstitutional when they believe the legislature has acted
unwisely -- has long since been discarded."
The Ferguson case totally repudiated the old
reasonableness-due process test, the doctrine that
judges have the power to hold laws unconstitutional
upon the belief of judges that they "shock the conscience" or that they are "unreasonable," "arbitrary,"
"irrational," "contrary to fundamental 'decency,'" or
some other such flexible term without precise
boundaries. I have many times expressed my opposition to that concept on the ground that it gives
judges power to strike down any law they do not
like. If the majority of the Court today, by agreeing
to the opinion of my Brother FORTAS, is resurrecting that old reasonableness-due process test, I
think the constitutional change should be plainly,
unequivocally, and forthrightly stated for the benefit
of the bench and bar. It will be a sad day for the
country, I believe, when the present-day Court returns to the McReynolds due process concept.
Other cases cited by the Court do not, as implied,
follow the McReynolds reasonableness doctrine.
West Virginia v. Barnette, 319 U.S. 624, clearly rejecting the "reasonableness" test, held that the
Fourteenth Amendment made the First applicable
to the States, and that the two forbade a State to
compel little schoolchildren to salute the United
States flag when they had religious scruples against
doing so. 3 Neither Thornhill v. Alabama, 310 U.S.
88; Stromberg v. California, 283 U.S. 359; Edwards
v. South Carolina, 372 U.S. 229; nor Brown v.
Louisiana, 383 U.S. 131, related to schoolchildren
at all, and none of these cases embraced Mr. Justice McReynolds' reasonableness test; and Thornhill, Edwards, and Brown relied on the vagueness of
state statutes under scrutiny to hold them unconstitutional.
Cox v. Louisiana, 379 U.S. 536, 555,
and Adderley v. Florida, 385 U.S. 39, cited by the
Court as a "compare," indicating, I suppose, that
these two cases are no longer the law, were not
rested to the slightest extent on the Meyer and
Bartels "reasonableness-due process-McReynolds"
constitutional test.
3
In Cantwell v. Connecticut, 310 U.S.
296, 303-304 (1940), this Court said:
"The First Amendment declares that
Congress shall make no law respecting an
establishment of religion or prohibiting the
free exercise thereof.
The Fourteenth
Amendment has rendered the legislatures of
the states as incompetent as Congress to
enact such laws. The constitutional inhibition of legislation on the subject of religion
has a double aspect. On the one hand, it
forestalls compulsion by law of the acceptance of any creed or the practice of any
form of worship. Freedom of conscience
and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law.
On the other hand, it safeguards the free exercise of the chosen form of religion. Thus
the Amendment embraces two concepts, -freedom to believe and freedom to act. The
first is absolute but, in the nature of things,
the second cannot be. Conduct remains
subject to regulation for the protection of society."
I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50 years"
that "students" and "teachers" take with them into
the "schoolhouse gate" constitutional rights to
"freedom of speech or expression." Even Meyer did
not hold that. It makes no reference to "symbolic
speech" at all; what it did was to strike down as
"unreasonable" and therefore unconstitutional a
Nebraska law barring the teaching of the German
language before the children reached the eighth
grade. One can well agree with Mr. Justice Holmes
and Mr. Justice Sutherland, as I do, that such a law
was no more unreasonable than it would be to bar
the teaching of Latin and Greek to pupils who have
not reached the eighth grade. In fact, I think the
majority's reason for invalidating the Nebraska law
was that it did not like it or in legal jargon that it
"shocked the Court's conscience," "offended its
sense of justice," or was "contrary to fundamental
concepts of the English-speaking world," as the
Court has sometimes said. See, e. g., Rochin v.
California, 342 U.S. 165, and Irvine v. California,
347 U.S. 128. The truth is that a teacher of kindergarten, grammar school, or high school pupils
no more carries into a school with him a complete
right to freedom of speech and expression than an
anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into a Catholic
church or Jewish synagogue. Nor does a person
carry with him into the United States Senate or
House, or into the Supreme Court, or any other
court, a complete constitutional right to go into
those places contrary to their rules and speak his
mind on any subject he pleases. It is a myth to say
that any person has a constitutional right to say
what he pleases, where he pleases, and when he
pleases. Our Court has decided precisely the opposite. See, e. g., Cox v. Louisiana, 379 U.S. 536,
555; Adderley v. Florida, 385 U.S. 39.
In my view, teachers in state-controlled public
schools are hired to teach there. Although Mr. Justice McReynolds may have intimated to the contrary
in Meyer v. Nebraska, supra, certainly a teacher is
not paid to go into school and teach subjects the
State does not hire him to teach as a part of its selected curriculum. Nor are public school students
sent to the schools at public expense to broadcast
political or any other views to educate and inform
the public. The original idea of schools, which I do
not believe is yet abandoned as worthless or out of
date, was that children had not yet reached the
point of experience and wisdom which enabled
them to teach all of their elders. It may be that the
Nation has outworn the old-fashioned slogan that
"children are to be seen not heard," but one may, I
hope, be permitted to harbor the thought that taxpayers send children to school on the premise that
at their age they need to learn, not teach.
The true principles on this whole subject were
in my judgment spoken by Mr. Justice McKenna for
the Court in Waugh v. Mississippi University in 237
U.S. 589, 596-597. The State had there passed a
law barring students from peaceably assembling in
Greek letter fraternities and providing that students
who joined them could be expelled from school.
This law would appear on the surface to run afoul of
the First Amendment's freedom of assembly clause.
The law was attacked as violative of due process
and of the privileges and immunities clause and as
a deprivation of property and of liberty, under the
Fourteenth Amendment. It was argued that the fraternity made its members more moral, taught discipline, and inspired its members to study harder and
to obey better the rules of discipline and order.
This Court rejected all the "fervid" pleas of the fraternities' advocates and decided unanimously
against these Fourteenth Amendment arguments.
The Court in its next to the last paragraph made this
statement which has complete relevance for us today:
"It is said that the fraternity to which complainant belongs is a moral and of itself a disciplinary
force. This need not be denied. But whether such
membership makes against discipline was for the
State of Mississippi to determine. It is to be remembered that the University was established by
161
the State and is under the control of the State, and
the enactment of the statute may have been induced by the opinion that membership in the prohibited societies divided the attention of the students and distracted from that singleness of purpose which the State desired to exist in its public
educational institutions. It is not for us to entertain
conjectures in opposition to the views of the State
and annul its regulations upon disputable considerations of their wisdom or necessity." (Emphasis
supplied.)
It was on the foregoing argument that this Court
sustained the power of Mississippi to curtail the
First Amendment's right of peaceable assembly.
And the same reasons are equally applicable to
curtailing in the States' public schools the right to
complete freedom of expression. Iowa's public
schools, like Mississippi's university, are operated
to give students an opportunity to learn, not to talk
politics by actual speech, or by "symbolic"
speech. And, as I have pointed out before, the
record amply shows that public protest in the school
classes against the Vietnam war "distracted from
that singleness of purpose which the State [here
Iowa] desired to exist in its public educational institutions." Here the Court should accord Iowa educational institutions the same right to determine for
themselves to what extent free expression should
be allowed in its schools as it accorded Mississippi
with reference to freedom of assembly. But even if
the record were silent as to protests against the
Vietnam war distracting students from their assigned class work, members of this Court, like all
other citizens, know, without being told, that the
disputes over the wisdom of the Vietnam war have
disrupted and divided this country as few other
issues ever have. Of course students, like other
people, cannot concentrate on lesser issues when
black armbands are being ostentatiously displayed
in their presence to call attention to the wounded
and dead of the war, some of the wounded and the
dead being their friends and neighbors. It was, of
course, to distract the attention of other students
that some students insisted up to the very point of
their own suspension from school that they were
determined to sit in school with their symbolic armbands.
Change has been said to be truly the law of life
but sometimes the old and the tried and true are
worth holding. The schools of this Nation have
undoubtedly contributed to giving us tranquility and
to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to
domestic peace. We cannot close our eyes to the
162
fact that some of the country's greatest problems
are crimes committed by the youth, too many of
school age. School discipline, like parental discipline, is an integral and important part of training
our children to be good citizens -- to be better citizens. Here a very small number of students have
crisply and summarily refused to obey a school order designed to give pupils who want to learn the
opportunity to do so. One does not need to be a
prophet or the son of a prophet to know that after
the Court's holding today some students in Iowa
schools and indeed in all schools will be ready,
able, and willing to defy their teachers on practically
all orders. This is the more unfortunate for the
schools since groups of students all over the land
are already running loose, conducting break-ins,
sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the
newspapers and watch the television news programs, have already engaged in rioting, property
seizures, and destruction. They have picketed
schools to force students not to cross their picket
lines and have too often violently attacked earnest
but frightened students who wanted an education
that the pickets did not want them to get. Students
engaged in such activities are apparently confident
that they know far more about how to operate public
school systems than do their parents, teachers, and
elected school officials. It is no answer to say that
the particular students here have not yet reached
such high points in their demands to attend classes
in order to exercise their political pressures.
Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is
nothing but wishful thinking to imagine that young,
immature students will not soon believe it is their
right to control the schools rather than the right of
the States that collect the taxes to hire the teachers
for the benefit of the pupils. This case, therefore,
wholly without constitutional reasons in my judgment, subjects all the public schools in the country
to the whims and caprices of their loudest-mouthed,
but maybe not their brightest, students. I, for one,
am not fully persuaded that school pupils are wise
enough, even with this Court's expert help from
Washington, to run the 23,390 public school systems 4 in our 50 States. I wish, therefore, wholly to
disclaim any purpose on my part to hold that the
Federal Constitution compels the teachers, parents,
and elected school officials to surrender control of
the American public school system to public school
students. I dissent.
4 Statistical Abstract of the United States
(1968), Table No. 578, p. 406.
MR. JUSTICE HARLAN, dissenting.
I certainly agree that state public school authorities in the discharge of their responsibilities are not
wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time I am
reluctant to believe that there is any disagreement
between the majority and myself on the proposition
that school officials should be accorded the widest
authority in maintaining discipline and good order in
their institutions. To translate that proposition into
a workable constitutional rule, I would, in cases like
this, cast upon those complaining the burden of
showing that a particular school measure was motivated by other than legitimate school concerns -for example, a desire to prohibit the expression of
an unpopular point of view, while permitting expression of the dominant opinion.
Finding nothing in this record which impugns
the good faith of respondents in promulgating the
armband regulation, I would affirm the judgment
below.
REFERENCES
The Supreme Court and the right of free speech
and press
15 Am Jur 2d, Colleges and Universities 22; 16 Am
Jur 2d, Constitutional Law 341 et seq.; Am Jur,
Schools (1st ed 167 et seq.)
18 Am Jur Pl & Pr Forms, Schools, Forms 18:141,
18:141.1
US L Ed Digest, Constitutional Law 925, 925.7,
925.8, 928
ALR Digests, Colleges and Universities 3; Constitutional Law 791; Schools 60, 62
L Ed Index to Anno, Constitutional Law; Schools
ALR Quick Index, Freedom of Speech and Press;
Schools
Annotation References:
The Supreme Court and the right of free speech
and press. 93 L Ed 1151, 2 L Ed 2d 1706, 11 L Ed
2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976.
Validity of regulation by public school authorities as
to clothes or personal appearance of pupils. 14
ALR 3d 1201.
Regulations as to fraternities and similar associations connected with educational institution. 10
ALR3d 389.
Use of school property for other than public school
or religious purposes. 94 ALR2d 1274.
Validity, construction, and application of statutes or
regulations concerning recreational or social activities of pupils of public schools. 134 ALR 1274,
subd III superseded 10 ALR3d 389.
163
164