John and Mary Beth Tinker were public school students in Des Moines,
Iowa in December of 1965. As part of a group against American
involvement in the Vietnam War, they decided to publicize their
opposition by wearing black armbands to school. Having heard of the
students' plans, the principals of the public schools in Des Moines
adopted and informed students of a new policy concerning armbands. This
policy stated that any student who wore an armband to school would be
asked immediately to remove it. A student who refused to take off his or
her armband would be suspended until agreeing to return to school
without the band.
Two days later and aware of the school policy, the Tinker children
and a friend decided to wear armbands to school. Upon arriving at
school, the children were asked to remove their armbands. They did not
remove the armbands and were subsequently suspended until they returned
to school without their armbands.
The children returned to school without armbands after January 1,
1966, the date scheduled for the end of their protest. However, their
fathers filed suit in U.S. District Court. This suit asked the court for
a small amount of money for damages and an injunction to restrain
school officials from enforcing their armband policy. Although the
District Court recognized the children's First Amendment right to free
speech, the court refused to issue an injunction, claiming that the
school officials' actions were reasonable in light of potential
disruptions from the students' protest. The Tinkers appealed their case
to the U.S. Court of Appeals but were disappointed when a tie vote in
that court allowed the District Court's ruling stand. As a result they
decided to appeal the case to the Supreme Court of the United States.
The case came down to this fundamental question: Do the First
Amendment rights of free speech extend to symbolic speech by students in
public schools? And, if so, in what circumstances is that symbolic
speech protected? The First Amendment states "Congress shall make no law
. . . abridging the freedom of speech." The 14th Amendment
extends this rule to state governments as well, of which school systems
are a part. The First Amendment, however, does not identify which kinds
of speech are protected. For example, it is not clear whether hate
speech against an individual or group is protected. Neither does the
First Amendment specify what types of expressive actions should be
considered as speech.
The Supreme Court of the United States has made many attempts to
determine what types of symbolic speech are protected under the First
Amendment. In 1919, the Court decided in Schenck v. United States
that an individual could be punished for distributing anti-World War I
pamphlets urging non-compliance with the draft because the pamphlets
"create[ed] a clear and present danger that they will bring about [a]
substantive evil[ . . .] Congress has a right to prevent"—draft
obstruction. The Court wrestled with the issue of the right to symbolic
speech again in the case of Thornhill v. Alabama (1940)
when the Court ruled that picketing was a form of symbolic speech
protected by the First Amendment because no clear and present danger of
destruction of life or property or of breach of the peace was inherent
in the action. Three years later in West Virginia v. Barnette (1943), the Court extended the First Amendment protection of symbolic speech to students in public schools. In Barnette,
the Court held "[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters
of opinion. . . ."
In 1968 the Supreme Court of the United States agreed to hear
Tinker's case and consider the constitutionality of the Des Moines
principals' anti-armband policy. The Court's decision in Tinker v. Des Moines was handed down in 1969.
Questions to consider
Do you think that the school policy banning armbands was fair? Why or why not?
The students knew they would be suspended if they wore armbands
to school and chose to do so anyway. Why do you think they ignored the
The First Amendment says "Congress shall make no law . . .
abridging the freedom of speech." Why do you think the Supreme Court of
the United States has ruled that certain actions should have the same
protection as verbal speech? Are these reasons valid?
In both Schenck and Thornhill, the Court seemed
to make a rule that certain actions were guaranteed protection under the
First Amendment's freedom of speech clause as long as those actions did
not . . . What rule or test did the Court seem to make?
Pretend that students in your school wanted to protest the
school-wide ban on smoking. Should they legally be allowed to protest by
wearing T-shirts that read "Up with 'Butts'!"? Why or why not?