Robert Johnson Moore, Esq.
Freedom of speech under the constitution is not narrowly limited to the spoken word. Speech may include gestures, lyrics to a song, or the wearing of a button, a T shirt, or a slogan on a sweatshirt or a jacket. Speech may be expressed under certain conditions as silence. Freedom of expression has become the most inclusive phrasing of the protected concept.
To thirteen year old Mary Beth Tinker, speech was the wearing of a black arm band to her junior high school as a symbol of her opposition to the Vietnam War. Fifteen year old John F. Tinker, Mary’s brother and his friend Christopher Eckhardt, sixteen, wore similar arm bands to their Des Moines High School. Despite the fact that their protest was silent in nature, all three students were suspended from school under a policy promulgated by the principals of the Des Moines schools “that any student wearing black armbands to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband.”
Mary Beth, through her parents, filed a federal lawsuit under ¤¤ 1983 of Title 42 of the United States Code against the school system praying “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 sought nominal damages.” At the district court level the complaint was dismissed. School authorities were held to have constitutionally based authority to prevent disturbance of school discipline. The district refused to follow the Fifth Circuit’s holding in a similar case (
Burnside v. Byars
, 363 F. 2d 744) that “the wearing of symbols like armbands cannot be prohibited unless it ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.’ ”
Tinker
moved slowly through the court system. In 1969 at the height of the Vietnam protests, the Supreme Court ruled in a 7 to 2 vote that the wearing of armbands was constitutionally protected and that school authorities, absent a showing of disruption could not ban peaceful protests.
Tinker
clarified that the conduct of wearing an armband was “pure speech” and therefore entitled to comprehensive protection under the First Amendment. While school officials may wish to regulate “the length of skirts or the type of clothing, . . . hair style, or deportment,” the conduct in
Tinker
“does not concern aggressive, disruptive action or even group demonstrations.”
“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.”
The majority opinion in
Tinker
continued:
“. . . [The]he 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. 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.)”
The court pointed out that all political symbols were not subject to the regulation. The wearing of armbands to protest the Vietnam War was the specific target of school authorities. Justice Brennan in a related case is cited as saying:
“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American 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.’ “
Justice Stewart concurred with the majority opinion delivered by Justice Fortas. Yet he took exception to the court’s assumption that the First Amendment rights of children are co-extensive with those of adults. Citing a case which dealt with restricting children from pornography (
Ginsberg v. New York
, 390 U.S. 629). Stewart recognized that the 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.” A discussion of the landmark
Prince v. Massachusetts
case (321 U.S. 158), upon which Steward based his concerns will be discussed in appropriate detail shortly.
Stewart cautions the court that in
Tinker
and related cases, the students derived their First Amendment protection from their parents. In
Tinker
the parents of the students supported the protests and encouraged their children to wear the armbands. Arguably
Tinker
may have been decided differently if the parents of the children did not approve of the silent protest.
Justice Black’s dissenting opinion in
Tinker
highlights the fact that the students involved were expressing the views of their politically active parents. School officials elected by the community had the vested authority to prevent the school room from becoming a political platform at the whim of students and teachers. Moreover, Justice Black found evidence of disruption. He writes: “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.” Mary Beth’s classmates were more interested in looking at her armband than in paying attention to the mathematics lesson. “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.”
Constitutional experts feel that
Tinker
was more a case about upholding family expression or parental inculcation of values than a case about children’s rights under the First Amendment. (
Children’s Rights
, 81).
In
Prince v. Massachusetts
, Betty M. Simmons, nine years old, wanted to go with her aunt Sarah Prince when she sold copies of “Watchtower,” the official religious newsletter of the Jehovah’s Witnesses at night on the streets of Brockton. Under relevant sections of Massachusetts’ comprehensive child labor law, Mrs. Prince was convicted of permitting a minor to sell papers. Mrs. Prince claimed that the child labor laws interfered with her rightful exercise of her religious convictions as guaranteed by the First and Fourteenth Amendments. Sections 80 and 81 abridged her freedom of religion and denied her equal protection of the laws.
Applying the doctrine of parens patriae, the court in
Prince
stated that:
“the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. . . . And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
The court continues:
“The state’s authority over children’s activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. . . . The zealous though lawful exercise of the right to engage in propagandizing the community, whether in religious, political or other matters, may and at times does create situations difficult enough for adults to cope with the wholly inappropriate for children, especially of tender years, to face. Other harmful possibilities could be stated, of emotional excitement and psychological or physical injury. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. . . .”
While the ruling in
Prince
was not intended to extend beyond the facts of case, it has broad implications. Children do not have the First Amendment rights of their parents in certain religious matters when public safety is a concern. The court balances the competing legal issues and decides in favor of the state’s compelling interest in protecting young children’s health and safety while curtailing some of the religious practices of the adults. How the court in Tinker found in favor of political practices of parents and students under the First Amendment in wake of
Prince
is open for further discussion.
