Quiz 2 - Tinker

Discrimination types

Content & viewpoint; can not restrict free speech based upon subject matter or type of speech (content)

Unprotected Speech Categories

Defamation, fighting words, true threat, illegal advocacy, clear & present danger

Illegal advocacy

Speech of encouragement to commit a crime

content neutrality

"time, place, and manner restrictions" seek not to limit any particular type of speech, but merely to regulate the circumstances under which the speech may take place.

Tinker Test

*determines whether a school's disciplinary actions violate students' first amendment rights 1. assess if it is speech (symbolic, pure) 2. individual right of speech vs. substantial disruption 3. reactive vs. proactive (reactive=need disruption first, proactive= enough evidence that it will cause a disruption) Tinker Standard: unless expression materially or substantially interferes with normal school operations or discipline, it must be allowed to flourish

What did the U.S. Supreme Court rule?

- The Supreme court held that the armbands did represent symbolic speech that is entirely separate from the actions or conduct of those participating in it. Students do not lose their 1st amendment rights when they step onto school property. The conduct in question must "materially and substantially interfere" with the operation of the school. In this case, the school's actions were based on the possibility of an interference, one did not actually occur. - In 1969 the United States Supreme Court ruled in a 7-2 decision in favor of the students. The court agreed that students rights should be protected and said, "Students don't shed their constitutional rights at the school house gates."

Speech can be abridged when; Tinker holding (three prong test)

- materiality disruption of classwork (Tinker 8th Circuit) - involves substantial disorder (Burnside 5th Circuit) - invades the rights of others

Facts of the case (Tinker v. Des Moines)

1) A group of students had a meeting and planned to show their support for a truce in the Vietnam War. They planned to show their support by wearing black armbands to school and to fast. five students, ages 13-16, decided to show opposition to the Vietnam War. The students planned to wear two-inch-wide black armbands to school for two weeks 2) The school district found out about the students' plan and preemptively announced a policy that any student who wore a black armband, or refused to take it off, would be suspended from school after the student's parents were called. 3) Mary Beth Tinker, an eighth-grader, and John Tinker and Christopher Eckardt wore the armbands and all three of them were sent home 4) parents filed suit against the school district for violating the students' First Amendment right to free speech. 5) The Tinkers asked the U.S. Supreme Court to review that decision, and the Court agreed to hear the case.

Argument for Des Moines

1) Free speech is not an absolute right 2) Students in academic classes could have been distracted from their lessons by the armbands. 3) Students in academic classes could have been distracted from their lessons by the armbands because the Vietnam War is a controversial issue which would lead to kids voicing opinions or getting bullied. 4) The school did not ban all types of expressions, just the armbands. They were banned because of their inflammatory nature and potential for significant disruption

Arguments for Tinker

1) They possess fundamental rights that all levels of government must respect. 2) The 14th Amendment protects people from state infringement of their First Amendment rights to free speech. 3) Wearing the armbands was a form of speech and speech was not disruptive 4) The students wearing the armbands did not infringe any other student's rights 5) Schools are meant to act as an environment for discourse and a forum for different ideas

Constitutional Amendment and Supreme Court Precedents

1) U.S. Constitution, Amendment I 2) West Virginia State Board of Education v. Barnette (1943)

West Virginia State Board v. Barnette

1943 1)All teachers and pupils were required to salute the flag. If they did not, they could be charged with "insubordination" and punished 2) Jehovah's Witnesses and had a religious objection to saluting the flag sued the state board of education 3) The Court said a flag salute was a form of speech, because it was a way to communicate ideas. 4) The Supreme Court ruled that this mandatory salute was unconstitutional violated the establishment clause.

Reasoning:

Armband was speech and was intended to convey a mssg. They did not disturb class or stop teaching, so their 1st amendment rights were violates, since the administration had no proof that they would cause a disturbance. - Supreme court determined that the fear or apprehension of possible disturbance does not warrant taking away the student' right to freedom of expression while at public school - Court said school did not have substantial evidence that a disruption of some sort would ensue from the expression - therefore, the suspensions were not warranted -In reversing their suspensions, the supreme court determined that the student's actions were pure speech (it applied the advocacy of abstract ideas theory -Supreme court thought it was absurd that the policy was implemented because 7 in 18,000 students were wearing armbands (it targeted only ONE type of symbolic expression - the armband)

Issue

Does a prohibition against the wearing of armbands in public school, as a form of symbolic speech, violate the students' freedom of speech protections guaranteed by the First Amendment?

What did Justice Potter Stewart think?

He thought that children don't have the same rights of speech as adults.

What did Justice Hugo Black think?

He thought that the school didn't have the right to limit this speech.

What is the importance of the Tinker vs. Des Moines trial?

Shows that students still have rights under a school zone that cannot be violated unless it causes a disruption in the school. Including the rights to use journalism freely.

true threat

Intent to commit an act of unlawful violence

What year was the Supreme Court Case ruling? What did they rule?

It was in 1969, and seven out of the nine justices sided with the students.

Applies to Tinker, has to be...

Political & passive, symbolic & pure speech If not political & passive-> distinguishable

Symbolic Speech

Recognized as being protected under the first amendment- conveying an idea or message through behavior -clear, communicative message

Black's dissent

The First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted form the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students

Holding

The First Amendment, as applied through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war protest, absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others. (The black armbands did not cause a disturbance or offend anyone so the punishment was unjust)

What did the U.S. Court of Appeals rule?

The Tinker family lost once again in a equal vote, which they decided to stand.

What did the U.S. District Court rule?

They ruled with the school, saying that the armbands could be a distraction in schools.

fighting words

Words that tend to cause an immediate violent response from the listener

Student's rights vs. in loco parentis

in loco parentis= latin for "in the place of a parent", refers to the legal responsibility of a person/organization to take on some of the responsibilities of a parent during the school day

viewpoint discrimination

the government does not have the right to discriminate against speakers based on their views

substantial disruption test

used to determine whether an act by a U.S. public school official violates a student's 1st amendment rights- did the expression of the student "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school?" reactive v. proactive disruption