Democracy for the Children of Tomorrow, Restricting Free Speech for Children of Today

Parties Involved Children are all too frequently silenced at the dinner table. Their awe of the world, refined by discussion, is viewed as naive blunderings upon which the guiding hand of experience has weighed too lightly. This was the perception produced in the United States Supreme Court Case, Tinker v. Des Moines Independent Community School District (1969). In protest of the Vietnam War, five children decided to wear black armbands to school in support of the Christmas truce. These students, from Des Moines, Iowa, were reprimanded on different levels, but in respect to their outward expression of a political opinion. In the High School, John Tinker and Chirstopher Ekhardt; Junior High School, Mary Beth Tinker; and Elementary School, Hope and Paul Tinker, represented their beliefs outwardly. To pre-empt this action, an example of prior restraint, the principals of all schools developed a policy requiring all children to remove any arm bands. Noncompliance would result in suspensions until they were removed, signifying the end of their protest.

The problem posed by the present case does not relate to the regulation of the length of skirts or the type of clothing, to hair style or deportment… It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment Rights akin to “pure speech.

In the case, it was also relevant that a meeting was called among the principals to decide the issue in response to a student’s statement to a journalism teacher that they were hoping to write an article regarding Vietnam, and was thus dissuaded. On a similar note, the school did not aim to prohibit the clear expression of all symbols with political or expressionist significance. School records presented that students in several of the schools had worn buttons relating to different political campaigns, as well as some wearing the Iron Cross, a traditional Nazi symbol. The prohibition era did not extend to these symbols, rather only to the black armbands worn to exhibit contrary opinions towards the United States' involvement in Vietnam. ​

Legal Arguments For and Against Supporting Free Speech, YES! To the Arm Bands (7) Among the agreed majority, schools are not allowed to prohibit free speech on the suspicion that it might disrupt the learning environment. “In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to free expression.” As aforementioned, only several students were found to be wearing the arm bands within a district of 18,000 students. There was no indication that these actions were disruptive. It was recorded that several students outside of classrooms made comments on the bands, but were not threatening or violent in nature, supporting the case that there was no disruption to schooling as a result of this expression. Similar statements made by citizens more mature in age, represents the notion that “this sort of hazardous freedom–this kind of openness–that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Being that schools represent areas of learning for children who are regarded as “persons” whose freedoms are protected wholeheartedly by the Constitution, the rights of expression under the First Amendment are equally protected by the Constitution as those of adults. Mr. Justice Stewart expressed reserved concerns, citing a previous case in Ginsburg V. New York, that “at least in some precisely delineated areas, a child-like someone in a captive audience–is not possessed to have that full capacity for individual choice which is the presupposition of First Amendment guarantees.” However, in support of the case before the court at present, or in 1969, the rights of children’s individual speech, like that of any American regardless of age, is free within school settings. As students are not able to ‘shed their constitutional rights to freedom of speech or expression at the house gate’, the right to protest within a school ground must be protected with the utmost respect, especially that of children learning and growing to be the next bulwarks of democracy.

Support for Control of Expression, NO! To Arm Bands (2) In opposition, the minority on this decision felt that the First Amendment was not always wholly protective. Students wearing arm bands were supposed to be focused on learning within schools, so the bands were a distraction, allowing the school principals legitimate authority to preserve the learning environment. Justices Harlan and Black dissented.

Justice Black made the case that the First Amendment’s protections were limited to speech alone, where schools are allowed to decide what is reasonable. He argued that “symbolic speech’ being ‘akin to pure speech’, which is protected by the first and fourteenth amendments…relies on an appropriate place to exercise free speech as long as it does not disrupt school function.” He believed that the effects aforementioned were enough to constitute disruption of the learning environment. Justice Black deemed that the Court’s opinion on this case, Tinker v. Doe (1969) would usher in “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 the ultimate effect transferred to the Supreme Court.” Thus, school officials decide what is reasonable. Similarly in opposition, Justice John Marshal Harlan II, said that there was no evidence to suggest that the school board was wrongly motivated in their implementation of the ban. He said that there could be reason to believe that the school acted in the wrong only if “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 the expression of the dominant opinion”, which was not the case in this argument. Finding nothing on the school’s record to impugn the good faith of this decision, Justice Harlan II decided that the arm bands were not protected by the First Amendment under free speech or expression. ​

Outcomes of the Decision The court decided that schools were unable to prohibit speech or expression through arm bands on the suspicion that it could disrupt the learning environment. They said yes to allowing the arm bands for all of the students. In the interest of “the vigilant protection of constitutional freedoms [being] nowhere more vital than in the community of American schools… 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.” The upholding of the children’s free speech, especially in the avenue of a school building across all ages, represents the vital importance of respecting youth’s right to learn and expand their ideas through their learning, especially during times of great national division such as during the Vietnam War. ​

Did the Court Get it Right? Freedom of expression is protected by the First Amendment. The court believed that “even if a topic is controversial, and some disruption may occur, expressive conduct is protected by the First Amendment. This decision is somewhat surprising because courts usually show greater deference to schools, based on their importance in helping children grow into disciplined, mature adults. Decision since Tinker have taken a more restrictive view of free speech in this setting.” This case had broad implications for the protections of free speech, especially regarding the rights of the child. As in America, children are not viewed as fully mature until the ages of 18 and 21 respectively. The right to freely vote for their representatives and opinions comes with time and experience, as believed by the democracy in which they are protected. The United States operates through a social contract, where one must relinquish some rights and freedoms for the protection of a state that guarantees them others. Regarding the decision of Tinker, the court upheld the correct rights in respect of the children. They were treated as autonomous beings who were able to think and protest feely of their own volition, something that upset them. They were advocating a peaceful cease fire for Christmas, during a time in which war and atrocities were the norm. Growing up in the world where this is possible, these children deserve even more respect for their belief in peace during a time where they were not being led by many examples. To this end, the demonstration of peace that these children showed demonstrates a fact that they were learning to become good citizens and hoping to make change, which could not be limited. In the decision, the Supreme Court found that we cannot “shed [their]... [our] constitutional rights to freedom of speech or expression at the house gate.” We learn through a tenant central to the education system, that the expression and right to disagree is essential. As people of different beliefs, rights, experiences, and nationalities, we are tied to our opinions as part of our identities, which allows us to become self-aware beings. The 1969 ruling cemented our right to disagree during our formative years. Students and children are thus allowed to be independent beings who do not lose freedoms in institutions meant to better them.