Mary Beth Tinker, the plaintiff in Tinker v. Des Moines Independent Community School District (1969), is a First Amendment legend. The case came to the Supreme Court because Ms. Tinker, her siblings and friend, wore black armbands to school to protest the Vietnam War. The students were told to remove their armbands. The students said that the forced removal of the armbands violated their First Amendment rights. The Court held that students do not shed their First Amendment rights when they are on school property.
Ms. Tinker travels across the country and shares her story about the case. I invited her to speak to my Justice and the Legal System class on Feb. 25. She noted during her presentation that she only wore the armband at school for a few hours—just a few hours changed the course of history.
Recently, Ms. Tinker traveled to North Dakota to testify for the passage of a state bill, the John Wall New Voices Act (HB 1471). The bill looks to create a new section in the North Dakota Century Code, “relating to freedom of expression rights of students of public institutions of higher education and public schools.”[1] This bill passed 92-0 in the state’s House. Now, bill must be sent to the state’s Senate.
The John Wall New Voices Act defines “school-sponsored media,” “student journalist” and “student media adviser.” In the act, “a student journalist has the right to exercise freedom of speech and of the press in school-sponsored media, regardless of whether the media is supported financially by the institution or by use of facilities of the institution or produced in conjunction with a class in which the student is enrolled.”
But why is this bill so important to North Dakota, anyway? In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court held that educators can exercise “editorial control over the style and content of student speech in school-sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical concerns.” This decision, which has been known to “chill student speech,” applies to student journalists, student actors, really any student on school property who uses their First Amendment rights. North Dakota’s House of Representatives just voted to reverse that precedent in their state.
But here’s the catch in the bill and here’s where Tinker becomes a grey area: students do not have the right to exercise freedom of speech if the material “So incites students as to create a clear and present danger…and substantial disruption of the orderly operation of the institution.” Under Tinker, students have the right to express themselves freely as long as the expression does not cause a “substantial disruption.”
But what, technically, is the definition of a disruption? This question raises the idea of heckler’s veto, when a reacting party impacts the acting party’s First Amendment rights.
Here’s an example of a heckler’s veto: On September 17, 2014 (Constitution Day)[2], the U.S. Ninth Circuit Court of Appeals decided not to rehear and not to rehear en banc Dariano v. Morgan Hill Unified School District, “a civil rights suit brought by high school students who were asked to remove clothing bearing images of the American flag after school officials learned of threats of race-related violence during a school-sanctioned celebration of Cinco de Mayo.”[3] The panel in the Ninth Circuit “held that school officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances.”[4]
According to the Ninth Circuit’s summary, the dissenting judges on the panel held that “the reaction of other students to the speaker is not a legitimate basis for suppressing student speech absent a showing that the speech in question constitutes fighting words, a true threat, incitement to imminent lawless action, or other speech outside the First Amendment’s protection.”[5] The judges also say that the heckler’s veto doctrine condones “the suppression of free speech by some students because other students might have reacted violently.”[6]
On December 15, 2014, the petitioners filed a writ of certiorari to the Supreme Court. The issue in the case is the following: “whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message, thereby incorporating a heckler’s veto into the free speech rights of students contrary to Tinker v. Des Moines Independent Community School District.”[7] The case was distributed for a March 27 conference. Mary Beth Tinker and her brother, John, filed an amicus brief in favor of the petitioners. The Center for Constitutional Jurisprudence and the Alliance Defending Freedom also filed amicus briefs, also in favor of the petitioners.
We will find out soon if the Court decides to grant certiorari for this case. Stay tuned!
[1] http://www.legis.nd.gov/assembly/64-2015/documents/15-0825-01000.pdf?20150120102330
[2] http://dailycaller.com/2014/09/18/ninth-circuit-affirms-that-its-illegal-to-wear-american-flag-shirts-on-cinco-de-mayo/
[3] http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] http://www.americanfreedomlawcenter.org/wp-content/uploads/2012/02/Dariano-Petition-for-Cert-Final.pdf