From Black Armbands to Bong Hits for Jesus: The 40th Anniversary of Tinker: John Tinker and Kenneth W. Starr Share Their Divergent Views about Limitations on the Freedom of Speech in Schools
Brown, Steven M., Bultinck, Howard J., Phi Delta Kappan
2009 marks the 40th anniversary of the landmark Supreme Court case, Tinker v. Des Moines Independent Community School District. That case established that students, as well as teachers, do not "shed their constitutional right to freedom of speech or expression at the schoolhouse gate." The justices held 7 to 2 that students had a First Amendment right to wear black armbands in school to protest the Vietnam War as long as school was not substantially disrupted. This case still remains the quintessential student rights case even though subsequent cases eroded some of those rights.
One of those later cases was the 2007 U.S. Supreme Court ruling in Morse v. Frederick, also known as the "Bong Hits for Jesus" case. The Morse Court ruled that a student, Joseph Frederick, who displayed a "Bong Hits 4 Jesus" sign at a high school event, was not protected by the First Amendment because school officials had the right to control drug-related expression in schools. Nevertheless, a majority of the justices did reaffirm Tinker's basic principles.
We recently had the opportunity to interview both John Tinker and Kenneth Starr for WGTD Public Radio in Kenosha, Wisconsin. Tinker continues to champion student rights. Starr, who is now dean of the law school at Pepperdine University, represented the Juneau, Alaska, high school principal, Deborah Morse, in the "Bong Hits" case before the U.S. Supreme Court.
The following exchange of ideas between Tinker and Starr illustrates just how passionate they both are concerning student rights and the rights of schools to maintain order.
Question: Justice [Abe] Fortas said in Tinker that students have the right of free speech in K-12 public schools as long as it does not create a material and substantial disruption to the educational environment. What exceptions, if any, would you make to students' freedom of expression in the classroom and at school?
Starr: Staying with the Supreme Court's teaching, speaking through Justice Fortas in the case that bears John Tinker's name and continues to be the law of the land, the baseline is freedom. But there can be exceptions, just as there are general exceptions to the First Amendment. "Congress shall make no law abridging the freedom of speech" doesn't mean that there can't be defamation laws, the laws of libel. It does not mean that anything goes. As [Justice Oliver Wendell] Holmes said famously: You can't cry fire in a crowded theatre. Now why is that? That is because, where there are high concerns and demonstrable concerns about social evils, then, in fact, there can be regulation. So, the question is: What is it that a school is trying to achieve? Liberty is the baseline. Freedom of speech is the baseline. But, what is the school trying to achieve? And what the school cannot try to achieve is to limit political expression, but it can, we now know, by virtue of the Morse case, create limited exceptions to the baseline rule that liberty prevails, so as to forestall or prevent, as best as the school can, demonstrable social evil as in the Morse v. Frederick case involving the concern about drug use and the celebration more generally of the drug culture at that particular high school.
Tinker: Well, I agree with the idea that freedom is the baseline. I think that when we are talking about exceptions--developing a list of exceptions--that we should realize that the baseline is really the most important thing and the exceptions should come where there are problems. And, where there are not problems, there should not be exceptions. In the Morse case, there's no evidence that that created a disruption. It was at a parade. It was outside of the school. It was, you know, the Olympic torch event. It was going by. There was no evidence that there was any disruption other than that caused by [principal Deborah] Morse insisting that the sign come down. I don't think that we should see our task here as developing some kind of index, a compendium, of exceptions. …