Help with questions

1) How did the court express its reasoning behind differentiating between the free speech rights of students and others?

2) Do you agree with the court's decision?Why or why not?No right or wrong answer here.

134 CASES FOR STUDY For study resources and a case archive go to study.sagepub.com/medialawbe. THINKING ABOUT IT The two case excerpts that follow highlight the Supreme Court's attempts to bal- ance the First Amendment freedom of speech with concerns for educational goals and personal safety. Both cases help identify the parameters of First Amendment protection: The first clarifies the extent to which important competing values-in this case, education of the young- may limit the freedom of speakers. The second helps define when words that express ideas, even in artistic form, may lose consti- tutional protection because they threaten others and engender fear. . Consider what each decision, as well as the two taken together, demonstrates about the different categories of speech in the Court's jurisprudence. . In these two decisions defining the extent of First Amendment freedoms, does the Court focus on the nature of the speech, the intent of the law, the impact of the regulation or something else to reach its conclusion? . To what extent does the Court's decision in Tinker turn on the category of speech, the type of speaker, the location of speech or other factors involved? Does Elonis provide a workable definition of true threats and a clear test to determine when such speech is unprotected? Tinker v. Des Moines Independent Community School District SUPREME COURT OF THE UNITED STATES 393 U.S. 503 [1969) JUSTICE ABE FORTAS delivered the Court's First Amendment rights, applied in light of the opinion: special characteristics of the school environment, are . .. The District Court recognized that the wearing available to teachers and students. It can hardly be of an armband for the purpose of expressing cer- argued that either students or teachers shed their con- tain views is the type of symbolic act that is within stitutional rights to freedom of speech or expression at the Free Speech Clause of the First Amendment. the schoolhouse gate. This has been the unmistakable As we shall discuss, the wearing of armbands in holding of this Court for almost 50 years. .. . the circumstances of this case was entirely divorced . .. On the other hand, the Court has repeatedly from actually or potentially disruptive conduct emphasized the need for affirming the comprehensive by those participating in it. It was closely akin to authority of the States and of school officials, consis- "pure speech" which, we have repeatedly held, is cent with fundamental constitutional safeguards, to entitled to comprehensive protection under the First prescribe and control conduct in the schools. . . . Our Amendment. problem lies in the area where students in the exerciseof First Amendment rights collide with the rules of there is no finding and no showing that engaging in the school authorities. the forbidden conduct would "materially and sub- The problem posed by the present case . . . does stantially interfere with the requirements of appro- not concern aggressive, disruptive action or even priate discipline in the operation of the school," the group demonstrations. Our problem involves direct, prohibition cannot be sustained. primary First Amendment rights akin to "pure . .. [T]he record fails to yield evidence that the speech." school authorities had reason to anticipate that the The school officials banned and sought to punish wearing of the armbands would substantially Inter- petitioners for a silent, passive expression of opinion, fere with the work of the school or impinge upon the unaccompanied by any disorder or disturbance on the rights of other students. . . . part of petitioners. There is here no evidence whatever On the contrary, the action of the school authori- of petitioners' interference, actual or nascent, with the cies appears to have been based upon an urgent wish school's work or of collision with the rights of other to avoid the controversy which might result from the students to be secure and to be let alone. Accordingly, expression, even by the silent symbol of armbands, this case does not concern speech or action that of opposition to this Nation's part in the conflagra intrudes upon the work of the schools or the rights of tion in Vietnam. It is revealing, in this respect, that other students. . . . the meeting at which the school principals decided to . . . Outside the classrooms, a few students made issue the contested regulation was called in response hostile remarks to the children wearing armbands, to a student's statement to the journalism teacher in but there were no threats or acts of violence on school one of the schools that he wanted to write an article premises. on Vietnam and have it published in the school paper. The District Court concluded that the action (The student was dissuaded.) of the school authorities was reasonable because it It is also relevant that the school authorities did was based upon their fear of a disturbance from the not purport to prohibit the wearing of all symbols wearing of the armbands. But, in our system, undif- of political or controversial significance. The record ferentiated fear or apprehension of disturbance is not shows that students in some of the schools wore but- enough to overcome the right to freedom of expres- tons relating to national political campaigns, and sion. Any departure from absolute regimentation may some even wore the Iron Cross, traditionally a symbol cause trouble. Any variation from the majority's opin- of Nazism. . .. Instead, a particular symbol-black ion may inspire fear. Any word spoken, in class, in armbands worn to exhibit opposition to this Nation's the lunchroom, or on the campus, that deviates from involvement in Vietnam-was singled out for prohi- the views of another person may start an argument bition. Clearly, the prohibition of expression of one or cause a disturbance. But our Constitution says we particular opinion, at least without evidence that it is must cake this risk; and our history says that it is this necessary to avoid material and substantial interfer- sort of hazardous freedom-this kind of openness- ence with schoolwork or discipline, is not constitu- that is the basis of our national strength and of the tionally permissible. independence and vigor of Americans who grow up In our system, state-operated schools may not and live in this relatively permissive, often disputa- be enclaves of totalitarianism. School officials do tious, society. not possess absolute authority over their students. In order for the State in the person of school offi- Students in school as well as out of school are "per- cials to justify prohibition of a particular expression sons" under our Constitution. They are possessed of of opinion, it must be able to show that its action fundamental rights, which the State must respect, was caused by something more than a mere desire to just as they themselves must respect their obliga- avoid the discomfort and unpleasantness that always tions to the State. In our system, students may not accompany an unpopular viewpoint. Certainly where be regarded as closed-circuit recipients of only thatwhich the State chooses to communicate. They may JUSTICE POTTER STEWART, concurring: not be confined to the expression of those sentiments Although I agree with much of what is said in the that are officially approved. In the absence of a spe- Court's opinion, and with its judgment in this case, cific showing of constitutionally valid reasons to reg. I cannot share the Court's uncritical assumption ulate their speech, students are entitled to freedom of that, school discipline aside, the First Amendment expression of their views. . . . rights of children are coextensive with those of . . . A student's rights, therefore, do not embrace adults. . . . I continue to hold the view [that] . . . [a] merely the classroom hours. When he is in the caf- State may permissible determine that, at least in eteria, or on the playing field, or on the campus some precisely delineated areas, a child-like some- during the authorized hours, he may express his one in a captive audience-is not possessed of that opinions, even on controversial subjects like the full capacity for individual choice which is the pre- conflict in Vietnam, if he does so without "materi- supposition of First Amendment guarantees. ally and substantially interfer[ing] with the require- ments of appropriate discipline in the operation of JUSTICE BYRON WHITE, concurring: the school" and without colliding with the rights While I join the Court's opinion, I deem it appro- of others. But conduct by the student, in class or priate to note, first, that the Court continues to out of it, which for any reason-whether it stems recognize a distinction between communicating from time, place, or type of behavior-materially by words and communicating by acts or conduct disrupts class work or involves substantial disorder which sufficiently impinges on some valid state or invasion of the rights of others is, of course, not interest. . . . immunized by the constitutional guarantee of free- dom of speech. JUSTICE HUGO BLACK, dissenting: Under our Constitution, free speech is not a right The Court's holding in this case ushers in what I that is given only to be so circumscribed that it exists deem to be an entirely new era in which the power in principle but not in fact. Freedom of expression to control pupils by the elected "officials of state sup- would not truly exist if the right could be exercised ported public schools . . ." in the United States is in only in an area that a benevolent government has pro- ultimate effect transferred to the Supreme Court. The vided as a safe haven for crackpots. . . . [Wje do not Court brought this particular case here on a petition confine the permissible exercise of First Amendment for certiorari urging that the First and Fourteenth rights to a telephone booth or the four corners of a Amendments protect the right of school pupils to pamphlet, or to supervised and ordained discussion express their political views all the way "from kin- in a school classroom. dergarten through high school." Here, the constitu- If a regulation were adopted by school officials tional right to "political expression" asserted was a forbidding discussion of the Vietnam conflict, or the right to wear black armbands during school hours expression by any student of opposition to it anywhere and ar classes in order to demonstrate to the other on school property except as part of a prescribed class- students that the petitioners were mourning because room exercise, it would be obvious that the regulation of the death of United States soldiers in Vietnam and would violate the constitutional rights of students, at to protest that war which they were against. . . . least if it could not be justified by a showing that the ... [The crucial . .. questions are whether students' activities would materially and substantially students and teachers may use the schools at their disrupt the work and discipline of the school. In the whim as a platform for the exercise of free speech- circumstances of the present case, the prohibition of "symbolic" or "pure"-and whether the courts will the silent, passive "witness of the armbands," as one allocate to themselves the function of deciding how of the children called it, is no less offensive to the the pupils' school day will be spent. While I have Constitution's guarantees. ... always believed that, under the First and FourteenthAmendments, neither the State nor the Federal schools in the country to the whims and caprices of Government has any authority to regulate or censor their loudest-mouthed, but maybe not their bright- the content of speech, I have never believed that any est, students. I, for one, am not fully persuaded that person has a right to give speeches or engage in dem- school pupils are wise enough. . . . I wish, therefore, onstrations where he pleases and when he pleases. ... wholly to disclaim any purpose on my part to hold I think the record overwhelmingly shows that the that the Federal Constitution compels the teachers, armbands did exactly what the elected school offi- parents, and elected school officials to surrender con- cials and principals foresaw they would, that is, took trol of the American public school system to public the students' minds off their class work and diverted school students. I dissent. them to thoughts about the highly emotional subject of the Vietnam War. And I repeat that, if the time has JUSTICE JOHN HARLAN, dissenting: come when pupils of state-supported schools, kinder- I certainly agree that state public school authori- gartens, grammar schools, or high schools, can defy ties in the discharge of their responsibilities are and flout orders of school officials to keep their minds not wholly exempt from the requirements of the on their own schoolwork, it is the beginning of a new Fourteenth Amendment respecting the freedoms of revolutionary era of permissiveness in this country expression and association. At the same time I am fostered by the judiciary. ... reluctant to believe that there is any disagreement It may be that the Nation has outworn the old- between the majority and myself on the proposition fashioned slogan that "children are to be seen, not that school officials should be accorded the widest heard," but one may, I hope, be permitted to harbor authority in maintaining discipline and good order the thought that taxpayers send children to school in their institutions. To translate that proposition on the premise that at their age they need to learn, into a workable constitutional rule, I would, in cases not teach. . . . Iowa's public schools . . . are operated like this, cast upon those complaining the burden of to give students an opportunity to learn, not to talk showing that a particular school measure was moti- politics by actual speech, or by "symbolic" speech. vated by other than legitimate school concerns-for And, as I have pointed out before, the record amply example, a desire to prohibit the expression of an shows that public protest in the school classes against unpopular point of view, while permitting expres- the Vietnam War "distracted from that singleness of sion of the dominant opinion. purpose which the State [here Iowa] desired to exist Finding nothing in this record which impugns in its public educational institutions."... the good faith of respondents in promulgateng the This case, therefore, wholly without constitu- armband regulation, I would affirm the judgment tional reasons, in my judgment, subjects all the public below. Elonis v. United States SUPREME COURT OF THE UNITED STATES 135 5. Ct. 2001 (2015) CHIEF JUSTICE JOHN ROBERTS delivered U. S. C. $ 875(c). Petitioner was convicted of violat- the opinion of the Court. ing this provision under instructions that required Federal law makes it a crime to transmit in inter- the jury to find that he communicated what a rea- state commerce "any communication containing sonable person would regard as a threat. The ques- any threat . . . to injure the person of another." 18 tion is whether the statute also requires that the