Political Speech

Tinker v. Des Moines

and

Texas v. Johnson

The Bill of Rights InstituteTribune TowerChicago, IL, April 24, 2006

Artemus WardDepartment of Political ScienceNorthern Illinois University

Political Speech

1st Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . .”

As distinguished from other types of speech (commercial speech, obscene speech, etc.) the Supreme Court has consistently held that political speech is the most protected form of expression.

Tinker v. Des Moines (1969)

John Tinker, 15, was a student at a public high school in Des Moines, Iowa. Mary Beth Tinker, his 13-year-old sister, attended junior high school. After meeting with a group of adults and students, they decided to publicize their objections to the Vietnam War by wearing black armbands to school.

School authorities became aware of the plan and adopted a policy that any student wearing an armband would be asked to remove it; if the student refused, the student would be suspended until he or she returned to school without the armband. The Tinker children wore armbands and were suspended from school.

Tinker v. Des Moines (1969)

Do students have the right to political expression on school grounds?

Does the state have the authority to restrict speech under its police powers: protect the health, safety, welfare, and morals of the people?

Is there a difference between elementary, middle, high school, and college students for free speech purposes?

Tinker v. Des Moines (1969)

Justice Fortas wrote for the Court: “In order for the state, in the person of school officials, to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Students do not “shed their constitutional rights when they enter the schoolhouse door.”

Tinker v. Des Moines (1969)

The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.

The school allowed other forms of political expression such as Nixon and Humphrey campaign button and the Iron Cross.

School isn’t just about attending classes and learning prescribed material. It is also about intercommunication among the students.

Tinker v. Des Moines (1969)

In dissent, 83-year-old Justice Black was livid . . .

“I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.”

Tinker v. Des Moines (1969) J. Black’s dissent continued . . .

“One does not need to be a prophet or the son of a prophet to know that after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials.”

Can you burn the American flag?

Texas v. Johnson (1989)

During the 1984 Republican National Convention re-nominating President Reagan, Johnson burned an American flag in protest.

As it was burning, he and his fellow protesters chanted "America, the red, white, and blue, we spit on you."

He was charged with violating the Texas flag desecration law, convicted, and sentenced to one year in prison and a $2,000 fine.

47 other states, and the U.S. also had flag-desecration laws.

Texas v. Johnson (1989)

Justice Brennan delivered the 5-4 majority opinion striking down all flag desecration laws.

The Court said that Johnson was engaging in political speech.

The state my not prohibit burning the flag to criticize the nation and allow burning a dirty flag in reverence to the nation. This is specifying content and taking into account the motivation of the actor, which the state is forbidden to do.

Texas v. Johnson (1989)J. Brennan’s majority opinion continued . . .

“Johnson burned an American flag in part of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. . . . Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred of threatened to occur because of Johnson’s burning of the flag. . . . We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Texas v. Johnson (1989)

Justice Kennedy concurred with Brennan and wrote:

"It is poignant but fundamental that the flag protects those who hold it in contempt."

Texas v. Johnson (1989)

C.J. Rehnquist dissented: “The flag does not present the views of

any political party and not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.”

“The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag. . .”

Texas v. Johnson (1989): Aftermath

In March 2000, the Senate rejected a proposed constitutional amendment that would have given Congress power to prohibit desecration of the U.S. flag. The 63-37 vote fell 4 votes short of the 2/3 majority needed. The last time the Senate voted on an amendment in 1995, they came up 3 votes short.

The amendment would say "Congress shall have the power to prohibit the physical desecration of the flag of the United States.”

The House has passed the amendment by a 2/3 majority 4 times since the GOP took control of Congress in 1995. More than 3/4 of the states are prepared to ratify the amendment if the Senate ever agrees. 49 state legislatures have passed resolutions urging Congress to send them an amendment.

Conclusion

Political Speech is highly protected both in schools and in public.

The 5-4 decision in Texas v. Johnson and resulting legislative activity suggest that this case may be overturned in the future.

O’Connor and Rehnquist were both on the losing side of that case, so their replacements would not make a difference.

Justice Stevens was also in dissent in that case, so his replacement could potentially strengthen the majority . . .