CHAPTER TWO – 7364D

When Constitutional Law Meets Flash Mobs – A Practical Method to Inform Juveniles about First Amendment Rights and Limitations

119

Course Summary Social media networks and mobile tech devices have made it easier for juveniles to exercise their rights of assembly and free speech. But what exactly are these rights and what are the limitations? This course explores how members of the legal community can effectively convey to juveniles some of the most important principles of a civil society while encouraging them to critically think about their responsibilities as members of such society. Course Planner: Honorable John M. Younge Faculty: Honorable Genece Brinkley Renee F. Bergmann, Esq. Elvin P. Ross, III, Esq. David K. Trevaskis, Esq.

120

WHEN CONSTITUTIONAL LAW MEETS FLASH MOBS
—A Practical Method to Inform Juveniles about First Amendment Rights and Limitations Friday, October 5, 2012 2:00 – 2:05 p.m. Introduction and Objectives (Elvin Ross) • Socializing with digital technology (social media networks and mobile tech devices) • Conveying substantive information to juveniles • Impacting juvenile’s knowledge base with regard to core constitutional principles, methods of dispute resolution, and the responsibilities of citizenship 2:05 - 2:30 p.m Overview and Discussion of the First Amendment (Renee Bergmann & David Trevaskis) • What does the First Amendment provide? • What are some cases that have most informed our understanding of free speech and assembly rights? o Schenk v. United States, 249 U.S. 47 (1919) o Tinker v. Des Moines, 393 U.S. 503 (1969) o Brandenburg v. Ohio, 395 U.S. 444 (1969) 2:30 – 2:55 p.m. Modeling the Lesson (Hon. Genece Brinkley) • Pre-Lesson Preparation • Classroom Management • Framing Question • Classroom Activities o Flash mobs o Cyber bullying o Mass protests • Post-Lesson Evaluation 2:55 – 3:00 p.m. Closing Remarks (Elvin Ross)

121

122

FLASH MOBS: The Rights of Assembly and FREE Speech 123 .

124 .

or physical ACTIVITY: Extended class harm to others. When do many people’s rights outweigh one person’s rights? What strategies can a student use to avoid being at the wrong place at the wrong time.e. (Legal team should circulate to clarify/answer any questions) 3. including: copy of first amendment. flash mob scenario. Discuss briefly as a class why it was important for the framers to be able to assemble and speak their minds. 2. With a legal team member as moderator. Break into four groups. As an entire class.” How do homework: courts step in to apply the law in a way that meets with the statutory intent but still maintain the spirit of the law? In the case of the first amendment. periods or -Think about the early lesson “No Vehicles in the Park. 2. marketplace of ideas notion). debrief regarding the limits of free speech and assembly. Hand out the sheet describing the role of each group. and try to explain the consequences of doing things another way. and role cards. and to jot down some ideas about why the protections of individual rights exist. case blurbs. 1. Every student should pair off with another student from a different group and explain why their group decided to approach the situation in the way they did. intimidation. taking notes about the best course of action and arguments to make. each group should answer the questions within their group. and not too much? CLOSING ACTIVITY: (5-10 minutes) PA CIVICS STANDARDS Advancing Civics Education High School Curriculum – Alternative Lessons 125 .L Le es ss so on n: : F FL LA AS SH HM MO OB BS S: : h e R i g h t s o f T The Rights of a as FR ss se em mb bl ly ya an nd dF RE EE E p e e c h S Speech Page 1 of 5 – Lesson at a Glance FRAMING QUESTION: MATERIALS NEEDED: OPENING ACTIVITY: (5 minutes) High School P Are there limits to Constitutional Rights? What channels of power are most effective to create change? Attached handouts. 2. Pretend you are arguing for your group’s position. Ask volunteers to read aloud the flash mob scenario. 1. and avoid the “mob mentality?” ENRICHMENT -Ask students to write down five alternatives to violence/ways to make change that do not involve threats. (i. how should Courts help apply the law in such a way that it covers just enough activity. Ask students to read the First Amendment silently. CLASS ACTIVITY: (40 minutes) 1.

or abridging the freedom of speech. Wartime allows greater restrictions on free speech than peacetime. Perhaps the ends justify the means? Tinker v." NOTE: The KKK and groups that promote hatred of others are usually allowed to assemble but often must go through a complex process to get a permit in order to do so. The leader was convicted for violating an Ohio law against syndicalism. Des Moines: Students wore armbands to school to protest the Vietnam War. or the right of the people peaceably to assemble. Do we allow only speech that we like? 126 . SELECTED CASES ON FREE SPEECH/ASSEMBLY: Schenk v. Encouraging insubordination can be a crime under the Constitution. On appeal. or of the press. More than “discomfort” is needed to justify limiting students’ right to free speech Test: schools can restrict conduct that “materially and substantially” interferes with the discipline or normal operation of the school. The Court reversed the Conviction: • Government cannot punish abstractly advocating force or illegal acts. the Supreme Court ruled: • • • Students do not “shed their constitutional rights” at the schoolhouse gates. Schenk was the Secretary of the Socialist Party of America during World War I. He made pamphlets saying that th the draft was involuntary servitude – (like slavery. Ohio: A Ku Klux Klan leader invited a TV station to a rally. and to petition the Government for a redress of grievances. Schenk was convicted of violating the Espionage Act of 1917. The KKK group called for “revengeance” and used ethnic slurs. or prohibiting the free exercise thereof.L Le es ss so on n: : F FL LA AS SH HM MO OB BS S: : h e R i g h t s o f T The Rights of a as FR ss se em mb bl ly ya an nd d F RE EE E p e e c h S Speech Page 2 of 5 – Amendment/Case Handout High School P AMENDMENT 1 to the UNITED STATES CONSTITUTION: Congress shall make no law respecting an establishment of religion. United States: Mr. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Justice Oliver Wendell Holmes wrote a unanimous opinion of the Supreme Court as follows: • • • • The conviction was upheld. Brandenburg v. The school district suspended the students until they agreed to remove the armbands. Speech is protected unless it encourages "imminent lawless action. which is prohibited by the 13 amendment).” Test is whether the words/circumstances create a clear and present danger” that they will bring about the harms laws want to prevent. and he wanted people to oppose the draft. where racial hatred was expressed.

The principal of East Thrilladelphia is Angel Orderly. or administrators. The leader of the Nayborhood students. Pat Gimmespace.L Le es ss so on n: : F FL LA AS SH HM MO OB BS S: : h R i g h t s o f T e The Rights of a as FR ss se em mb bl ly ya an nd d F RE EE E p e e c h S Speech Page 3 of 5 – Flash Mob Scenario P High School BACKGROUND: Recently. the cafeteria is not so crowded.” The message about the gathering got out to everybody. Pat and some friends made signs that say “WE BELONG” and “IMPROVE YOUR NAYBORHOOD. the boundaries for the neighborhoods that send students to the school have changed. The chanting got louder. and school property was destroyed. there has been a lot of tension and unrest. and in fact. Pat Gimmespace sent texts to all the Nayboorhood students and put up a notice on FaceBook that there would be a meeting in the schoolyard on Friday after school. they live closer to the school than many of the kids on the student council who want Nayborhood kids to leave. Terry and her followers want the new students to go somewhere else so that the building is not so full. Big fights broke out. MOVE OVER OR GET RUN OVER. Any student who was present at the flash mob got at least a 3 week detention during which they were to work on repair and repainting the property damage. Advancing Civics Education High School Curriculum – Alternative Lessons 127 . This year. led by a very responsible student named Terry Peaceful. Pat feels they have as much right to be there as anybody. and others were arrested. more organized school environment. is angry that the friends from her/his neighborhood are not being welcomed into the school. They believe in promoting learning. She allows students to gather at campus facilities for “authorized student groups” as long as the student group asks for permission in advance. Some students were suspended. A FLASH MOB ERUPTS: On Monday.” One of Pat’s friends made a sign that says “THE THRILL IS OVER. The Student Council. School policy does not allow destroying property or physically hurting students. and is sick of being treated like a second class citizen of the school. Some of the student groups have been fighting over whether the new students from the Nayborhood section of the city should be allowed to come to their school.” Other signs said “TREAT RIGHT OR GOODNIGHT. and turned to pushing. Pat is an A student. and over 75 students from all different groups showed up on Friday. teachers. All of the activities were caught on the security camera. wants a safer. and the class size is smaller. at East Thrilladelphia High School. Pat was caught up in the excitement of leadership and shoved another student.

1 High School P GROUP ROLES. GROUP ONE: Student Council Group. Pat got suspended from school. but did not get arrested. but they got out of hand. and what can Terry advocate to convince others that any negative impact can be minimized? GROUP TWO: Nayborhood Group. led by Terry Peaceful: Terry is sad that Friday got so crazy. Now. she wants to organize an official campaign to get the Nayborhooders out of her high school. and be ready to present your ideas to the whole class: 1) Is Pat’s group an “authorized group” that could assemble on school property? 2) How should Pat’s group deal with the fact that school property was destroyed by Nayborhood kids? 3) What is the best way for Nayborhood kids to stand up for their rights? 4) Is violence necessary to make change. Discuss as a group the following questions. led by Pat Gimmespace: Pat didn’t mean for things to get violent.L Le es ss so on n: : F FL LA AS SH HM MO OB BS S: : h e R i g h t s o f T The Rights of a as FR ss se em mb bl ly ya an nd d F RE EE E p e e c h S Speech Page 4 of 5 – Roles/Discussion Questions pt. Take notes so you can explain to others why your group thinks the way it does. or does it hurt the way others see you? 5) What signs in Pat’s group were protected by the Constitution (use your case summaries on the other page. Now that there is momentum against the new kids. 1) How should Terry convince people to get rid of the new students? What tools should she use? 2) Who should Terry talk to? Who has the power to keep out the Nayborhood kids? 3) What are the consequences of kicking out the Nayborhood kids. but secretly she is glad that the school can now see what a bad influence the Nayborhood kids can be. Pat doesn’t mind because maybe somebody will pay attention to how badly the Nayborhood kids are being treated.) 128 . Directions: Discuss the questions in your group.

not less. would it still have violated the “authorized group” provision for school meetings? 4) Should Angel call the superintendent to try to get the Nayborhood kids out of her school? GROUP FOUR: Judge and lawyers involved in the arrests. 1) Was what the flash mob organizers did the same or different from yelling “fire” in a crowded theater? The same as the KKK organizers? 2) Pretend you are the attorney for a student.L Le es ss so on n: : F FL LA AS SH HM MO OB BS S: : h R i g h t s o f T e The Rights of a as FR ss se em mb bl ly ya an nd d F RE EE E p e e c h S Speech Page 5 of 5 – Roles/Discussion Questions pt. who was present Friday but stayed on the outer edge of the violent group. The Judge has decided to let the lawyers argue both sides of the arrest cases so that s/he can make a fair decision. is important. What arguments would you make about why Jamie was exercising his/her rights or was acting lawfully? 3) Pretend you are the attorney for the school district. What changes would you recommend to school policy so that permits could be given for a peaceful assembly? 4) Pretend you are the Judge and you decided to convict a particularly violent student based on the evidence. Jamie. Jamie was pushing only because he had to keep from being crushed in the insanity. 1) What should Angel say at the assembly about time. place and manner of expression? How should Angel encourage frustrated students to express themselves in a better way? 2) How should Angel justify students being arrested and suspended? 3) If the gathering had been peaceful. led by Judge Lawful: Judge Lawful wants to uphold the law in an unbiased fashion. led by Angel Orderly: Angel needs to call for an assembly right away to help parents understand why the school environment turned violent. S/he believes that more student involvement in political issues. What would you say to the unruly students who hurt others and destroyed property? What cases would you cite in your decision and why? Advancing Civics Education High School Curriculum – Alternative Lessons 129 . Remember to take notes so you can justify/explain your answers. but feels that people from his neighborhood are being discriminated against. GROUP THREE: School administrators and teachers. 2 High School P ROLES – CONT’.

130 .

Brandenburg v.S. Ohio. 395 U. 444 (1969) 131 .

132 .

the intermediate appellate court of Ohio affirmed his conviction without opinion. by its own words and as applied. after finding that petitioner had not presented a constitutional issue for appeal.S. The court held that the statute impermissibly reached speech protected by the U.13. spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. As a result. sabotage. 71 L Ed 1095. JJ. but expressed PROCEDURAL POSTURE: Petitioner appealed a judgment from the Supreme Court of Ohio. both for advocating the duty. because Ohio's criminal syndicalism statute did not draw a distinction between teaching the need for force or violence and preparing a group for violent action. Code Ann. The United States Supreme Court granted review and concluded that. and for voluntarily assembling with any society. Black and Douglas." In an Ohio state court. 492 SUPREME COURT OF THE UNITED STATES 395 U. Ohio Rev. OHIO No. He was charged with violating Ohio's criminal syndicalism statute. His conviction was upheld on appeal by the Supreme Court of Ohio. assembly with others merely to advocate the described type of action. which.S. OUTCOME: The judgment finding that petitioner did not present a constitutional issue for appeal. In a per curiam opinion. and the Supreme Court of Ohio dismissed his appeal on the ground that no substantial constitutional question was presented. § 2923. I and XIV and petitioner's conviction was reversed. amends. Ct. it was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation. violence. Although he challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the Federal Constitution. Ohio Rev. which made it unlawful. Const. upheld petitioner's conviction under the state's criminal syndicalism statute. 1969. thereby upholding petitioner's conviction under the state's criminal syndicalism statute. under Ohio's criminal syndicalism statute. the Court reversed petitioner's conviction because the statute upon which his conviction was based was unconstitutional. § 2923. SUMMARY: The defendant. OVERVIEW: Petitioner was a leader of the Ku Klux Klan and was convicted by the Ohio courts after a television news report was aired broadcasting speeches made by petitioner. or propriety of crime. amends.BRANDENBURG v. expressing the unanimous views of the court and overruling Whitney v California (1927) 274 US 357.. the statute unconstitutionally intruded on the rights guaranteed by the U. or unlawful methods of terrorism as a means of accomplishing industrial or political reform. 23 L. purported to punish mere advocacy and to forbid. inter alia.13. and that since the Ohio criminal syndicalism statute. a leader of a Ku Klux Klan group. group. 1969. the United States Supreme Court reversed. I and XIV. Const. Code Ann. 89 S. except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action. 2d 430 February 27. Ed. each concurring separately. the statute violated the First and Fourteenth Amendments." "the niggers should be returned to Africa. he was convicted. necessity. His remarks included such statements as: "Bury the niggers. was reversed because the statute was declared unconstitutional. Argued June 9.S. Decided PRIOR HISTORY: APPEAL FROM THE SUPREME COURT OF OHIO. on pain of criminal punishment." and "send the Jews back to Israel. to advocate crime or methods of terrorism or to voluntarily assembly with any group to teach or advocate doctrines of syndicalism. or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. On appeal. 1827. 444. joined the court's opinion. 133 . DISPOSITION: CASE SUMMARY: Reversed. 47 S Ct 641.

by its own words and as applied. the duty.disagreement with the "clear and present danger" test which had been applied in an earlier decision cited by the court. or who voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism. or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society. or who publish or circulate or display any book or paper containing such advocacy. . violence. necessity. or advocate the propriety of the doctrines of criminal syndicalism. (3) the trial judge's charge merely followed the language of the indictment. or propriety of crime. the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. violence.advocacy of force or lawlessness -Headnote:[1] The constitutional guaranties of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation. assembly with others 134 . where (1) the first count of the indictment charged that the accused. sabotage. [***LEdHN2] CONSTITUTIONAL LAW §925 free speech -. and statutes affecting the right of assembly. assembly with others merely to advocate the described type of action. on pain of criminal punishment.advocacy of criminal syndicalism -Headnote:[3] The First and Fourteenth Amendments' guaranties of free speech and free press preclude a conviction for violation of a state criminal syndicalism statute which punishes persons who advocate or teach the duty.right of assembly -Headnote:[4] The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. like those touching on freedom of speech. must observe the established distinctions between mere advocacy and incitement to imminent lawless action. group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. purports to punish mere advocacy and to forbid. a Ku Klux Klan leader. (2) the second count charged that he did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism. spread. on pain of criminal punishment. a Ku Klux Klan leader who spoke at a Klan meeting. LAWYERS' EDITION HEADNOTES: [***LEdHN1] CONSTITUTIONAL LAW §925 free speech -. by its words and as applied. (4) neither the indictment nor the trial judge's instructions to the jury nor construction of the statute by the state courts in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. or who justify the commission of violent acts with intent to exemplify." Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. SYLLABUS Appellant. did unlawfully by word of mouth advocate the necessity or propriety of crime. thus purported to punish mere advocacy and to forbid. and (5) the statute. and a statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments and sweeps within its condemnation speech which the Federal Constitution has immunized from governmental control. necessity. was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . or unlawful methods of terrorism as a means of accomplishing political reform. Held: Since the statute. or propriety of violence as a means of accomplishing industrial or political reform. [***LEdHN3] CONSTITUTIONAL LAW §927 free speech -.teaching of need for violence -Headnote:[2] For purposes of determining whether the constitutional guaranties of free speech and free press are violated. [***LEdHN4] CONSTITUTIONAL LAW §925 CONSTITUTIONAL LAW §940 free speech -.

The speech.merely to advocate the described type of action. JUDGES: Warren. Brown. sabotage. Wulf. the duty. Leonard Kirschner argued the cause for appellee. Eleanor Holmes Norton. Douglas. Portions of the films were later broadcast on the local station and on a national network. and Bernard A. of Jews. "We are marching on Congress July the Fourth. "for the reason that no substantial constitutional question exists herein. including a pistol. 357. Stewart. The prosecution's case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. making a speech. 1 Another scene on the same film showed the appellant. but if our President. § 2923. Most of the words uttered during the scene were incomprehensible when the film was projected. pro se." 1 The significant portions that could be understood were: "How far is the nigger going to -. which they burned. With him on the briefs were Norman Dorsen.we have hundreds. a rifle.S. and Leo J. The State also introduced into evidence several articles appearing in the film. They were gathered around a large wooden cross.000 and sentenced to one to 10 years' imprisonment. Florida. a Bible. it's possible that there might have to be some revengeance taken. California. Code Ann. . Conway. hundreds of members throughout the State of Ohio. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution. our Supreme Court. Caucasian race. and a red hood worn by the speaker in the films. or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . in full. .S. 948 (1968)." "Send the Jews back to Israel." It did not file an opinion or explain its conclusions. The record shows that a man. Whitney v. With the cooperation of the organizers. Thank you. four hundred thousand strong." Ohio Rev. Marshall OPINION BY: PER CURIAM OPINION The appellant. the reporter and a cameraman attended the meeting and filmed the events. The Klan has more members in the State of Ohio than does any other organization. We reverse.13. White. was as follows: "This is an organizers' meeting. Paul W. but scattered phrases could be understood that were derogatory of Negroes and. our Congress." "A dirty nigger. necessity. Ohio Dispatch. five weeks ago Sunday morning. or propriety of crime. We have had quite a few members here today which are -.yeah. We're not a revengent organization. Black. ammunition. continues to suppress the white. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. and we noted probable jurisdiction. I can quote from a newspaper clipping from the Columbus. violence. one group to march on St." 135 . 393 U. a shotgun. filed a brief for the Attorney General as amicus curiae. Melvin L. Augustine. it falls within the condemnation of the First and Fourteenth Amendments. but the intermediate appellate court of Ohio affirmed his conviction without opinion. Berkman. Assistant Attorney General. group." "This is what we are going to do to the niggers. in one instance. sua sponte. Rueger. Appeal was taken to this Court. No one was present other than the participants and the newsmen who made the film. identified at trial as the appellant. One film showed 12 hooded figures. the other group to march into Mississippi. With him on the brief was Melvin G. or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society. 274 U. From there we are dividing into two groups. telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton County. The Supreme Court of Ohio dismissed his appeal. Attorney General of Ohio. a leader of a Ku Klux Klan group. COUNSEL: Allen Brown argued the cause for appellant. Harlan. He was fined $ 1. some of whom carried firearms. Brennan. overruled. in Klan regalia.

S. DeJonge v. In 1927. United States. 341 U. 385 U. and one sentence was added: "Personally. Whitney v.S. The reference to the possibility of "revengeance" was omitted. Russell.S. United States. 494. 378 U. 354 U. 494 (1951).S. 670.S. unrelated to its tendency to produce forcible action. 377 U. That this was the basis for Dennis was emphasized in Yates v. Aptheker v. or who publish or circulate or display any book or paper containing such advocacy. 357 (1927).S." "Nigger will have to fight for every inch he gets from now on. Penal Code §§ 11400-11402. "the mere abstract teaching .S. of the moral propriety or even moral necessity for a resort to force and violence. § 2385. Cf. 258 (1967). without more. 3 3 The first count of the indictment charged that appellant "did unlawfully by word of mouth advocate the necessity. Fiske v. at 507 (1951). [***LEdHR3] [3]Measured by this test." "Save America. S." "We intend to do our part. The Court upheld the statute on the ground that. Dowell. 2 As we said in Noto v. Dennis v. embodied such a principle and that it had been applied only in conformity with it that this Court sustained the Act's constitutionality. 301 U.S." See also Herndon v. "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it.S. 380 (1927).S.S. the text of which is quite similar to that of the laws of Ohio. . Ohio's Criminal Syndicalism Act cannot be sustained. Baggett v. See Dennis v. I believe the nigger should be returned to Africa."Let's give them back to the dark garden. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. United States. United States. or who "justify" the commission of violent acts "with intent to exemplify.S. Kansas. 18 U. Oregon. the speaker did not." "Give us our state rights. 367 U. 283 U. 242.S. United States. The Act punishes persons who "advocate or teach the duty. in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act. Stromberg v. 341 U. . or unlawful methods of terrorism as a means of accomplishing political reform . or propriety of crime." Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action." The second film showed six hooded figures one of whom. 385 U. or propriety" of violence "as a means of accomplishing industrial or political reform"." "Let's go back to constitutional betterment. 116. Bullitt.S. is not the same as preparing a group for violent action and steeling it to such action. later identified as the appellant. 320-324 (1957). 353 (1937). From 1917 to 1920. 290. this Court sustained the constitutionality of California's Criminal Syndicalism Act. identical or quite similar laws were adopted by 20 States and two territories. 354 U. 298. California. Yates v. 359 (1931).S. violence." "Freedom for the whites. Elfbrandt v. But Whitney has been thoroughly discredited by later decisions. 54 Stat. necessity. spread or advocate the propriety of the doctrines of criminal syndicalism". These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 11 (1966). 134 (1966). A History of Criminal Syndicalism Legislation in the United States 21 (1939). Secretary of State. 389 U. California. E. because the trial judge's instructions had allowed conviction for mere advocacy. repeated a speech very similar to that recorded on the first film. . the Jew returned to Israel. 297-298 (1961). or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism. 299 U. 589 (1967). 274 U." "Bury the niggers. 274 U. . 360 (1964). C." The second count charged that 136 . Bond v. Cal. 259-261 (1937). Board of Regents. See also United States v. Cf. Keyishian v. 384 U. . 500 (1964). Lowry. Floyd. Robel. A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments." Though some of the figures in the films carried weapons.S. [***LEdHR1] [1] [***LEdHR2] [2]The Ohio Criminal Syndicalism Statute was enacted in 1919. 298 (1957). 2 It was on the theory that the Smith Act.

that would be its probable effect.S. . purports to punish mere advocacy and to forbid. 249 U. but does not indicate any agreement on the Court's part with the "clear and present danger" doctrine on which Dennis purported to rely. at 364: "The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. 513. 460-461 (1958). Justice Holmes in a case arising during World War I -. And the conviction in Frohwerk was sustained because "the circulation of the paper was in quarters where a little breath would be enough to kindle a flame. I agree with the views expressed by MR. It is a question of proximity and degree. . 4Such a statute falls within the condemnation of the First and Fourteenth Amendments. JUSTICE BLACK. Kassay. United States. 4 Statutes affecting the right of assembly. and that decision is therefore overruled." Id. Reversed. The First Amendment was tendered as a defense. JUSTICE DOUGLAS in his concurring opinion in this case that the "clear and present danger" doctrine should have no place in the interpretation of the First Amendment. 211. 519 (1939). for as Chief Justice Hughes wrote in De Jonge v." See also United States v.appellant "did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism . at 206." The trial judge's charge merely followed the language of the indictment. In the 1919 Term. cannot be supported. was the third of the trilogy of the 1918 Term. 496. 542. must observe the established distinctions between mere advocacy and incitement to imminent lawless action.S. Schenck was referred to as a conviction for obstructing security "by words of persuasion.S. 126 Ohio St. 307 U. DOUGLAS CONCUR MR. 92 U. The case was Schenck v. The pamphlets that were distributed urged resistance to the draft. 47. No construction of the statute by the Ohio courts has brought it within constitutionally permissible limits. it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief. "If that was intended and if. Abrams v. . concurring. 137 . and impugned the motives of those backing the war effort. United [***LEdHR4] [4]Accordingly.. on pain of criminal punishment. United States. 357 U.S." Frohwerk v. simply cites Dennis v. I desire to enter a caveat. concurring. E. assembly with others merely to advocate the described type of action. like those touching on freedom of speech. Debs v. denounced conscription. supra. Hague v. 552 (1876). Mr.S.S. Justice Holmes. CONCUR BY: BLACK. The "clear and present danger" test was adumbrated by Mr.. Justice Holmes in rejecting that defense said: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. which. Cruikshank. Patterson. 449. While I join the opinion of the Court. Oregon. MR. 249 U. where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. supra. not by the Chief Executive. we are here confronted with a statute which. 184 N. JUSTICE DOUGLAS.. State v. 177." Id. by its own words and as applied. 494 (1951)." Id." Ibid. as I understand it. The contrary teaching of Whitney v. 52. 204. also authored by Mr. involved prosecution and punishment for publication of articles very critical of the war effort in World War I. I join the Court's opinion. United States. 341 U. 249 U. The Ohio Supreme Court has considered the statute in only one previous case. 521 (1932). in all the circumstances. United States. California. the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I.a war "declared" by the Congress. at 209. CIO. where the constitutionality of the statute was sustained. at 215. Debs was convicted of speaking in opposition to the war where his "opposition was so expressed that its natural and intended effect would be to obstruct recruiting.S. NAACP v. Alabama ex rel.

and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "the fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse ( Pierce v. United States. In Bridges v.'" Id. United States.S. 212. Id.S. 301 U. were the World War I cases that put the gloss of "clear and present danger" on the First Amendment. with whom Mr." We have never been faithful to the philosophy of that dissent. the only meaning of free speech is that they should be given their chance and have their way. Justice Brandeis.S. 367 U. at 510.the greatest leveler of them all -. at 509-511. moved closer to the First Amendment ideal when he said in dissent in Gitlow v. at 273) even in time of war. New York. was one instance. The Preference For Freedom. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. 315.S. 228. L. we approved the "clear and present danger" test in an elaborate dictum that tightened it and confined it to a narrow category. quoting from United States v. Schaefer. 652. United States. 616. In that case the prosecution dubbed an agreement to teach the Marxist creed a "conspiracy. Scales v.S. 298. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. where a speaker was arrested for arousing an audience when the only "clear and present danger" was that the hecklers in the audience would break up the meeting. United States. United States. Justice Brandeis. 203. Justice Holmes. Y. 261-263. And the "It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Justice Holmes. 1182. joined by Mr. The dissents in Abrams.. dissented. at 259-261. But whatever may be thought of the 138 . Those.S." The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants "intended to overthrow the Government 'as speedily as circumstances would permit. 239.S. I am certain it is not reconcilable with the First Amendment in days of peace. supra. 341 U. may be prosecuted. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. And see Hartzel v. at 628. Lowry. 680. United States.S. 274 U.is adequate to sustain that doctrine is debatable. Rev. 673: "Every idea is an incitement. Whether the war power -. California.. construing it to mean a determination of "'whether the gravity of the "evil. 314 U. Mr. in which again Mr.S. '" 2 Id. The Court quite properly overrules Whitney v. Another instance was Schaefer v. Dennis. 354 U.. 1203-1212 (1959). though never formally abandoning the "clear and present danger" test. he did not think that on the facts a case for overriding the First Amendment had been made out: redundant discourse before us it had no chance of starting a present conflagration. who has a guilty knowledge and intent of the aim to overthrow the Government by violence. overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. 34 N. The Court sustained convictions under that charge. While adhering to Schenck." discounted by its improbability. California. Noto v. Out of the "clear and present danger" test came other offspring. United States.States. A third was Pierce v.. But in Dennis v. justifies such invasion of free speech as is necessary to avoid the danger. United States. Justice Holmes. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war. Justice Holmes.2d 201. But an "active" member. distorting the "clear and present danger" test beyond recognition. then. 466. Justice Brandeis concurred. 268 U. 494. joined by Mr. 357. dissented. Yates v. 242. The Court in Herndon v. 290. dissented. Eloquence may set fire to reason. 251 U.S. which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous. 322 U. 252. in which Mr.S.S. 183 F.S. 2 See Feiner v. 250 U. New York. 252 U. U. 318. 367 U. 1 1 See McKay. 340 U. we opened wide the door. Mr. Congress certainly cannot forbid all effort to change the mind of the country." Id.

I see no place in the regime of the First Amendment for any "clear and present danger" test. That is the deep-seated fault in the infamous loyalty-security hearings which. It can be regulated as to the number of pickets and the place and hours (see Cox v.S. as we have said on numerous occasions. includes the power to determine which of the two categories fits the particular witness. ransacking his conscience and his innermost thoughts.S. But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent.. 391 U. 58. He was indicted. at 377-378. 775 (DOUGLAS. 578 (opinion of BLACK." My own view is quite different. The act of praying often involves body posture and movement as well as utterances. dissenting). J. One's beliefs have long been thought to be sanctuaries which government could not invade.S. at 93 (HARLAN. and convicted for burning the card. 490. Louisiana. Judge Learned Hand. with all respect. whether strict and tight as some would make it. and id. The lines drawn by the Court between the criminal act of being an "active" Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. 109. Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. 183 F. May he be indicted? Suppose one rips his own Bible to shreds to celebrate his departure from one "faith" and his embrace of atheism. Barenblatt v. supra). And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration. tried. 214. Empire Storage Co. 336 U. the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment. ideas. 339 U. 77 (BLACK. 130.S. Logan Plaza. J. The First Amendment was tendered as a defense and rejected. Picketing. And so the investigator roams at will through all of the beliefs of the witness. and convictions. which this Court adopted and which Judge Hand preferred over the "clear and present danger" test. Those hearings were primarily concerned with one's thoughts.). 391 U.2d 201. United States. because traffic and other community problems would otherwise suffer. J. J. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. 315 U.. 326 (DOUGLAS.000 men and women. 769. And this Court's affirmance of that conviction was not. 360 U.S. "The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the 139 . the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. the Court saying: functioning of this system. 367. Wohl. 382. concurring). Cox v. consistent with the First Amendment. that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. It is nonetheless protected by the Free Exercise Clause. 377 U. backed by the powerful sanction of contempt. 460. Labor Board v. The Bill of Rights 59 (1958). concurring). First.S. "I cannot help thinking that for once Homer nodded. Fruit Packers.. Louisiana. 559.. 501. or free-wheeling as the Court in Dennis rephrased it. Giboney v. 308.S. Superior Court.S. 379 U. concurring)." See Bakery Drivers Local v. J.. 465.." 391 U. have processed 20. Second. May he be indicted? Last Term the Court held in United States v. But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card. Indeed.power to investigate. since 1947 when President Truman launched them. When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators.000. coined the "not improbable" test.S. They were the most blatant violations of the First Amendment we have ever known. O'Brien. who wrote for the Court of Appeals in affirming the judgment in Dennis. is "free speech plus.. Food Employees v. Action is often a method of expression and within the protection of the First Amendment. great misgivings are aroused. in referring to Holmes' creation of the "clear and present danger" test. Hughes v. Barenblatt is one example of the ease with which that sanctuary can be violated. he said. beliefs. in his book. That means that it can be regulated when it comes to the "plus" or "action "side of the protest.

I think. speech is. a classic case where speech is brigaded with action. Freedom of Speech and Press Annotation References: The Supreme Court and the right of free speech and press. 2 L Ed 2d 1706. Constitutional Law ALR Quick Index. in Communications Assn. Constitutional Law 927 ALR Digests. The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre. and government has no power to invade that sanctuary of belief and conscience. Constitutional Law 341 et seq.S. Validity of legislation directed against political. immune from prosecution. See Speiser v. 140 . or industrial propaganda deemed to be of a dangerous tendency. Apart from rare instances of that kind. however. 11 L Ed 2d 1116. 449 et seq. 1 ALR 336. 73 ALR 1494. They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. 446. The quality of advocacy turns on the depth of the conviction. JUSTICE BLACK.S. J. US L Ed Digest. Randall. 536-537 (DOUGLAS. Douds. Constitutional Law 792(1) L Ed Index to Anno. v.. 20 ALR 1535. dissenting. 21 L Ed 2d 976. concurring). 3 3 See MR. 357 U.The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts. This is. REFERENCES 16 Am Jur 2d. 382. 513. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. 93 L Ed 1151. social. 339 U. 16 L Ed 2d 1053.

S.S.Schenck v. 249 U.. 47 (1919) 141 . U.

142 .

Comp. BAER v. 217. 219. 63 L. although in form confining itself to peaceful measures. defendants circulated leaflets that urged men to refuse to submit to the draft into military service. forbidding the causing or attempting to cause insubordination in the military and naval forces of the PROCEDURAL POSTURE: Defendants were convicted of conspiracy and other crimes under the Espionage Act of June 15. OVERVIEW: While the United States was at war.S. that the character of protected speech depended upon the circumstances in which it was expressed. the conviction of defendants did not violate the First Amendment. in Digest Sup.self-crimination -.] Conspiracy -.212c). 247. 76. falls within the condemnation of the provisions of the Espionage Act of June 15. The Court explained. III. 40 Stat. Evidence. b. the distribution of the leaflets would have been within defendants' constitutional rights. be asserted. at L.self-crimination -. 219. Stat. 438 SUPREME COURT OF THE UNITED STATES 249 U. 1919 PRIOR HISTORY: ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA CASE SUMMARY: OUTCOME: The Court affirmed the judgments that upheld defendants' convictions. For example.. Ct. 47. Because Congress was within its power to punish activity intended to obstruct the draft. chap. the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Comp. 3.evidence proceeding directly from defendant. 10. Ct. [For other cases. Const. defendants were convicted of crimes pursuant to the Espionage Act. Ed. 10. 1917.] Criminal law -. 437. 217. For attempting to obstruct military recruitment. UNITED STATES Nos. -Headnote: The protection against self-crimination afforded by U. LAWYERS' EDITION HEADNOTES: Criminal law -. see Criminal Law. chap. The Court admitted that in many places and in ordinary times. 39 S.. valid so far as appears. does not exclude in all cases evidence which directly proceeds from the defendant in a criminal proceeding. 470 Argued January 9. 2044a).obstructing recruiting and enlistment service. however. see Criminal Law. 1908. Ct. 40 Stat. for distributing leaflets that opposed the military draft. S. 1919 March 3. 1917 (40 Stat.search and seizure.SCHENCK v. in Digest Sup. Defendants appealed their convictions from the District Court of the United States for the Eastern District of Pennsylvania on the basis that the Espionage Act violated their First Amendment rights to the freedom of speech and the freedom of the press. 2. Defendants contended that the distribution of the leaflets was activity protected by the First Amendment. 1908. b. 1918. 30. The question in every case was whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. 5th Amend. -Headnote: A conspiracy to distribute a circular denouncing conscription in impassioned terms and vigorously urging that opposition to the selective draft provided for by the Act of May 18. 143 . 1918. 15. VIII. 219. 2. Stat. at L. UNITED STATES. -Headnote: Documentary evidence is not rendered inadmissible against defendants in a criminal case merely because it was obtained upon a search warrant. Search and Seizure. 1917 (40 Stat. such as a petition for the repeal of the act. [For other cases. III.

obstructing selective draft -. 1917 (40 Stat. Words which. at L. 10. 1908. 1917 (40 Stat. A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18. P. JUDGES: White. 49. P. 75. although unsuccessful. 219.] Conspiracy -. Affirmed. This is an indictment in three counts. P. Comp. Incriminating documents seized under a search warrant directed against a Socialist headquarters. c. chap. was on the brief. 3. 40 Stat. contrary to the Espionage Act of June 15. The amendment of the Espionage Act by the Act of May 16. 2044a). 51. 10. ordinarily and in many places. 1918. when the United States was at war with the German Empire. § 4. and to obstruct the recruiting and enlistment service of the United States. 76. Van Devanter. consistently with the Fourth and Fifth Amendments. Alfred Bettman. and is punishable under the Espionage Act. -Headnote: The constitutional freedom of speech and press was not infringed by the provisions of the Espionage Act of June 15. Pitney. in a criminal prosecution against the general secretary of a Socialist party. § 3. 15. 219.] Constitutional law -. -Headnote: A conspiracy to obstruct the recruiting or enlistment service of the United States when at war by the distribution of a circular tending to incite such obstruction may be made a crime. Gibbons for plaintiffs in error. under which a conviction may be had for a conspiracy which tends to influence persons subject to the Selective Draft Act of May 18. IV. as is done by the provisions of the Espionage Act of June 15. Comp. in Digest Sup. Ct. 52. Clarke OPINION BY: HOLMES OPINION MR. would be within the freedom of speech protected by the First Amendment. at L. in saying all that was said in the circular. for the United States. who had charge of the office. [For other cases. to obstruct such draft.Espionage Act. McKenna. see Conspiracy. c. Stat. 53. 217. 1918. Special Assistant to the Attorney General. 1917 (40 Stat. and followed by the sending of such circulars is within the power of Congress to punish. 1917. with the intent to effect that result. held admissible in evidence. 1908. The character of every act depends upon the circumstances in which it is done. in the military and naval forces of the United States. JUSTICE HOLMES delivered the opinion of the court. by causing and attempting to cause insubordination.to obstruct selective draft -. &c. P. Henry J. The first charges a conspiracy to violate the Espionage Act of June 15. 1908. Day. 30. Special Assistant to the Attorney General. 1917. in Digest Sup. John Lord O'Brian. did not affect the prosecution of offenses under the former. d. may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. see Constitutional Law. Stat. 1918. P. [For other cases. Ct. as well by draft as otherwise. would have been within their constitutional rights. chap. The word "recruiting" as used in the Espionage Act. or the obstructing of the recruiting or enlistment service of the United States when at war. to-wit. 1917. see Conspiracy. means the gaining of fresh supplies of men for the military forces. 219. [For other cases.212c). 1918.212c). Holmes. even though in many places and in ordinary times defendants. a circular tending to influence them to obstruct the draft.freedom of speech and press -. § 3.] SYLLABUS Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service. II. 3. Comp. Ct.United States. McReynolds. 553. Stat. 30. P. punishable as such. at L. COUNSEL: Mr. Henry John Nelson and Mr. Mr. 50. chap. 52. 40 Stat. 30. irrespective of the success or failure of such conspiracy.failure to accomplish illegal object.. Brandeis. 144 . in Digest Sup. II. THE case is stated in the opinion. with whom Mr.

192 U. and bringing the case here on that ground have argued some other points also of which we must dispose. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few." and went on "If you do not assert and support your rights. or of the press. to use the mails for the transmission of matter declared to be non-mailable by Title XII. &c. It said "Do not submit to intimidation. to be mailed to men who had passed exemption boards. 585. and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands. Without going into confirmatory details that were proved. was not sufficient to prove that the defendant Schenck was concerned in sending the documents. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers.000 leaflets should be printed on the other side of one of them in use. and for distribution. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence. 1917. a document set forth and alleged to be calculated to cause such insubordination and obstruction. &c. with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. 218 U.. to-wit." Of course the documents would not have been sent unless it had been intended to have some effect.that the defendants wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18. 383. ending in the distribution of the document set forth. valid so far as appears.. United States.S. winding up "You must do your share to maintain. 245. The other and later printed side of the sheet was headed "Assert Your Rights. if admissible. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants' possession. He identified a book found there as the minutes of the Executive Committee of the party. The contrary is established. On August 20 the general secretary's report said "Obtained new leaflets from printer and started work addressing envelopes" &c." but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. and there was a resolve that Comrade Schenck be allowed $ 125 for sending leaflets through the mail. The defendants were found guilty on all the counts. The document in question upon its first printed side recited the first section of the Thirteenth Amendment. the above mentioned document. It is argued that the evidence. The second count alleges a conspiracy to commit an offence against the United States. New York. 395." It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press. 457. 232 U. United States. Other copies were proved to have been sent through the mails to drafted men. Schenck personally attended to the printing. 396. He said that he had about fifteen or sixteen thousand printed. said that the idea embodied in it was violated by the Conscription Act and that a conscript is little better than a [*51] convict. that 15. 253. 1917. Adams v. 252. United States. 228 U. and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. Holt v. you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain. § 2 of the Act of June 15. and added that words could not express the condemnation such cold-blooded ruthlessness deserves. support and uphold the rights of the people of this country." It stated reasons for alleging that any one violated the Constitution when he refused to recognize "your right to assert your opposition to the draft. It is objected that the documentary evidence was not admissible because obtained upon a search warrant.S. The book showed a resolution of August 13. See Johnson v.S.. The count alleges overt acts in pursuance of the conspiracy.S. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. to-wit. Weeks v. The 145 . 1917.

It is a question of proximity and degree. The words are "obstruct the recruiting or enlistment service. 40 Stat. Aikens v. But recruiting is gaining fresh supplies for the forces.S. The statute of 1917 in § 4 punishes conspiracies to obstruct as well as actual obstruction. United States. liability for words that produced that effect might be enforced. The fact that the Act of 1917 was enlarged by the amending Act of May 16. although to prevent them may have been the main purpose. 75.S. It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. Goldman v.S. (speaking. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints. 477. It is put as an alternative to enlistment or voluntary enrollment in this act. suppose that that was the tendency of this circular.. 418. 194. 439. 454. 195 U. It seems to be admitted that if an actual obstruction of the recruiting service were proved. as intimated in Patterson v. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. 1918. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Wisconsin. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. If the act. 146 . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. 221 U. 474. Two of the strongest expressions are said to be quoted respectively from well-known public men. 553. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. But as the right to free speech was not referred to specially. of course. c.defendants do not deny that the jury might find against them on this point. does not affect the present indictment and would not. even if the former act had been repealed.) its tendency and the intent with which it is done are the same. But the character of every act depends upon the circumstances in which it is done. 245 U. we have thought fit to add a few words. 205. Rev. Colorado. it is protected by the First Amendment to the Constitution. Bucks Stove & Range Co. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights." and it might be suggested that they refer only to making it hard to get volunteers. 206. § 13.S. 205 U. we perceive no ground for saying that success alone warrants making the act a crime. Stats. Judgments affirmed. as well by draft as otherwise. 462. Gompers v.. But it is said. or circulating a paper.

503 (1969) 147 . Des Moines Independent Community School Dist.S.Tinker v. 393 U..

148 .

DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL. 2d 731 November 12. As a result the petitioners were all sent home and suspended from school until they would come back without their armbands. the District Court dismissed the complaint. 1968.) On appeal. Decided PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. After an evidentiary hearing. 149 . and as such was closely akin to "pure speech" which is entitled to comprehensive protection under the First Amendment. (258 F Supp 971. Petitioners' conduct was closely akin to pure speech which was entitled to comprehensive protection under the First Amendment. Argued February 24. The petitioners. (383 F2d 988. wore black armbands to their schools to publicize their objections to the hostilities in Vietnam and their support for a truce. upholding the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. Ed. despite the fact that they were aware that the school authorities a few days previously had adopted a policy or regulation that any student wearing an armband to school would be asked to remove it. 1969. v. it was held that the wearing of armbands in the circumstances of the case was entirely divorced from actually or potentially disruptive conduct by those participating in it.S. and seeking nominal damages. praying for an injunction restraining the school authorities from disciplining the petitioners. § 1983. The Supreme Court reversed because the wearing of armbands was entirely divorced from actually or potentially disruptive conduct by those that participated in it. § 1983 civil rights action. 503. absent facts that might reasonably have led school officials to forecast substantial disruption of or material interference with school activities. DISPOSITION: remanded. J. Petitioners sued respondents under 42 U. petitioner high school students challenged the judgment affirming the district court's dismissal of their 42 U. the petitioners. 21 SUPREME COURT OF THE UNITED STATES 393 U..S. The trial court dismissed the complaint. 89 S.2d 988. OUTCOME: The Court reversed the dismissal of the high school students' civil rights complaint against school officials.TINKER ET AL. Iowa. Ct. through their fathers. 21 L. then filed a complaint in the United States District Court for the Southern District of Iowa. upholding the constitutionality of respondents' action on the ground that it was reasonable in order to prevent the disturbance of school discipline.C.S. two public high school students and one junior high school student. 733. In an opinion by Fortas. and if he refused would be suspended until he returned without the armband. The circuit court affirmed. expressing the view of seven members of the court. the United States Court of Appeals for the Eighth Circuit affirmed without opinion.S. upholding the constitutionality of respondent school officials' suspension of petitioners for wearing black armbands to school in protest of the Vietnam War.) On certiorari. and that the school regulation prohibiting students from thus PROCEDURAL POSTURE: On writ of certiorari to the United States Court of Appeals for the Fifth Circuit. the United States Supreme Court reversed and remanded. reversed and SUMMARY: As part of a plan formulated by a group of adults and students in Des Moines. OVERVIEW: Respondent school officials suspended petitioner students from public high school because they wore black armbands to school in protest of the Vietnam War. No.C. CASE SUMMARY: 383 F.S.

noting that the court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinge on some valid state interests.wearing the armbands violated the students' rights of free speech under the First Amendment. in cases like the instant one. concurred. J.. but on the contrary it appeared that the authorities' action was based upon an urgent wish to avoid the controversy which might result from the expression symbolized by the armbands. but maybe not their brightest students. J. subjects all the public schools in the country to the whims and caprices of their loudest-mouthed. of 150 . in violation of a school regulation. however violative they may be of fundamental constitutional guaranties. dissented on the grounds that (1) the court arrogated to itself. (2) the case. [***LEdHN4] CONSTITUTIONAL LAW §925.. and that the particular symbol of black armbands was singled out for prohibition. Stewart. are available to teachers and students. but said that he could not share the court's uncritical assumption that. and (3) the court should have accorded the Iowa educational institutions the right to determine for themselves what free expression and no more should be allowed. saying that he would.students' wearing of armbands -Headnote:[1] Public school students' wearing. the decision as to which school disciplinary regulations are "reasonable". adhering to his view that a state may permissibly determine that. dissented. where there was no evidence that the authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. [***LEdHN2] CONSTITUTIONAL LAW §925 freedom of speech -.teachers and students -Headnote:[2] First Amendment rights of freedom of speech expression. rather than to the state's elected school officials.7 freedom of speech -." Harlan. wholly without constitutional reasons. Black. where the record amply showed that public protest in the school classes against the Vietnam war "distracted from that singleness of purpose which the state desired to exist in its public education institutions. and as such is closely akin to "pure speech" which is entitled to comprehensive protection under the First Amendment. [***LEdHN3] CONSTITUTIONAL LAW §8 SCHOOLS §1 conditions guaranties -on attendance -constitutional Headnote:[3A][3B] A state may not impose and enforce any conditions that it chooses upon attendance at public institutions of learning. applied in light of the special characteristics of the school environment. school discipline aside.. the First Amendment rights of children are coextensive with those of adults. cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns. but that he did not subscribe to everything said about free speech in a case relied upon by the court in its opinion. J. LAWYERS' EDITION HEADNOTES: [***LEdHN1] CONSTITUTIONAL LAW §925. at least in some precisely delineated areas. of black armbands during school hours as a symbolic act to publicize their objections to the hostilities in Vietnam and their support for a truce is entirely divorced from actually or potentially disruptive conduct by those participating in it.students' wearing of armbands -Headnote:[4] The problem presented by public school students' wearing. concurred in the judgment and most of the court's opinion. J.. and that he could find nothing in the record which impugned the good faith of the defendant school authorities in promulgating the armband regulation.7 freedom of speech -. a child--like someone in a captive audience--is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guaranties. White. and neither students nor teachers shed such rights at the schoolhouse gate. in violation of a school regulation.

that any variation from the majority's opinion may inspire fear." [***LEdHN5] CONSTITUTIONAL LAW §925.students' wearing of armbands -Headnote:[8A][8B] A regulation issued by public school authorities prohibiting students from wearing black armbands during school hours to publicize their objections to the hostilities in Vietnam and their support for a truce. [***LEdHN10] CONSTITUTIONAL LAW §8 SCHOOLS §1 students' rights -Headnote:[10] Students in state-operated schools. [***LEdHN7] CONSTITUTIONAL LAW §928 freedom of speech -. but the Federal Constitution requires that the risk be taken that any departure from absolute regimentation may cause trouble.students' wearing of armbands -Headnote:[5] Public school authorities' undifferentiated fear or apprehension of disturbance from students' wearing of black armbands during school hours to publicize their objections to the hostilities in Vietnam and their support for a truce. and that any word spoken in class. disruptive action or even group demonstrations. violates the students' constitutional rights to free speech under the First Amendment. primary First Amendment rights akin to "pure speech. is not enough to overcome the students' right to freedom of expression.7 freedom of speech -. as well as out of school. and school officials do not possess absolute authority over their students. [***LEdHN6] CONSTITUTIOINAL LAW §928 freedom of speech -. of a particular expression of opinion. but on the contrary the action of the school authorities appeared to have been based upon an urgent wish to avoid the controversy which might result from the expression. and are possessed of fundamental rights 151 . are "persons" under the Federal Constitution. cannot be sustained under the First Amendment. that deviates from the views of another person. [***LEdHN9] SCHOOLS §1 authority over students -Headnote:[9] State-operated schools may not be enclaves of totalitarianism. does not concern aggressive.7 freedom of speech -. it must be able to show that its action was caused by something more than a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint. where there was no evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students or that the prohibition was necessary to avoid material and substantial interference with school-work or discipline. in the lunchroom. where there is no finding and no showing that the exercise of the forbidden right would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.school prohibition -Headnote:[6] In order for the state in the person of school officials to justify prohibition of a particular expression of opinion under the First Amendment. may start an argument or cause a disturbance. but involves direct.school prohibition -Headnote:[7] A prohibition by the state in the person of school officials. or on the campus. of opposition to the United States' involvement in Vietnam. even by the silent symbol of armbands. [***LEdHN8] CONSTITUTIONAL LAW §925.black armbands during school hours as a symbolic act to publicize their objections to the hostilities in Vietnam and their support for a truce. and where the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance but instead singled out the black armbands in question.school regulation -.

he may express opinions. place. [***LEdHN17] CONSTITUTIONAL LAW §925. state school officials cannot suppress expression of feelings with which they do not wish to contend.students -Headnote:[15] The principle that the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. is not confined to the supervised and ordained discussion which takes place in the classroom. students in state-operated schools are entitled to freedom of expression of their views. [***LEdHN14] CONSTITUTIONAL LAW §8 SCHOOLS §1 freedoms -Headnote:[14] The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. in class or out of it. is not immunized by the constitutional guaranty of freedom of speech. [***LEdHN15] CONSTITUTIONAL LAW §925 freedom of speech -.school officials -Headnote:[13] Under the First Amendment. or type of behavior--materially disrupts classwork or involves substantial disorder or invasion of the rights of others.which the state must respect. [***LEdHN18] CONSTITUTIONAL LAW §925 freedom of speech -Headnote:[18] Under the Federal Constitution.suppression -. or on the playing field. free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. but when he is in the cafeteria. [***LEdHN16] CONSTITUTIONAL LAW §925 freedom of speech -. but extends to such activities as personal intercommunication among the students. which for any reason--whether it stems from time. [***LEdHN12] CONSTITUTIONAL LAW §925 freedom of speech -. [***LEdHN13] CONSTITUTIONAL LAW §928 freedom of speech -.state school students -Headnote:[12] In the absence of a specific showing of constitutionally valid reasons to regulate their speech. just as they themselves must respect their obligations to the state. or on the campus during the authorized hours. [***LEdHN19] CONSTITUTIONAL LAW §925 freedom of speech -Headnote:[19] Freedom of expression does not truly exist if the right can be exercised only in an area that a 152 .students -Headnote:[17] Conduct by a student.state school students -Headnote:[11] Students in state-operated schools may not be regarded as "closed-circuit" recipients of only that which the state chooses to communicate. even on controversial subjects. if he does so without materially and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others. and may not be confined to the expression of those sentiments that are officially approved.students -Headnote:[16] A student's constitutional rights of freedom of speech do not embrace merely the classroom hours.8 freedom of speech -. [***LEdHN11] CONSTITUTIONAL LAW §925 freedom of speech -.

was a 13-year-old student in junior high school. John's sister. COUNSEL: Dan L. Held: 1. [***LEdHN21] CONSTITUTIONAL LAW §925 free speech -. Petitioner John F. attended high schools in Des Moines. three public school pupils in Des Moines.regulation -Headnote:[20] The First Amendment to the Federal Constitution permits reasonable regulation of speech-connected activities in carefully restricted circumstances. or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise.benevolent government has provided as a safe haven for crackpots. The Court of Appeals. and petitioner Christopher Eckhardt. In these circumstances. Black. Jr. Petitioner Mary Beth Tinker. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands. Iowa. Belin. First Amendment rights are available to teachers and students. 3. Wulf and David N. Charles Morgan. their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. A prohibition against expression of opinion. without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others. were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. Tinker. 15 years old. Pp. Johnston argued the cause for petitioners. [***LEdHN22] CONSTITUTIONAL LAW §925 freedom of speech -. Brennan. 2. Douglas. at least if it cannot be justified by showing that the students' activities would materially and substantially disrupt the work and discipline of the school. 507-514. In wearing armbands. SYLLABUS Petitioners. as amicus curiae. the petitioners were quiet and passive. Pp. subject to application in light of the special characteristics of the school environment. In December 1965. 505-506. despite the absence of any finding of substantial interference with the conduct of school activities. With him on the brief were Herschel G. Iowa. Ellenhorn. The District Court dismissed the complaint on the ground that the regulation was within the Board's power.. sitting en banc. JUDGES: Warren. Allan A. Harlan. affirmed by an equally divided court. filed a brief for the United States National Student Association. They were not disruptive and did not impinge upon the rights of others. Fortas. it violates constitutional rights of students.exercise -Headnote:[21] The permissible exercise of First Amendment rights of free speech is not confined to a telephone booth or the four corners of a pamphlet. Marshall OPINION BY: FORTAS OPINION MR.school regulation -Headnote:[22] If a regulation adopted by school officials forbids discussion of the Vietnam conflict. Petitioners and their par- 153 . Stewart. Langdon and David W. JUSTICE FORTAS delivered the opinion of the Court. Herrick argued the cause for respondents. With him on the brief were Melvin L. 506-507. [***LEdHN20] CONSTITUTIONAL LAW §925 free speech -. White. is not permissible under the First and Fourteenth Amendments. or to supervised and ordained discussion in a school classroom. 16 years old. Pp. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year's Eve. urging reversal. a group of adults and students in Des Moines held a meeting at the Eckhardt home.

333 U. 589. Alabama. 555 (1965).2d 749 (1966). As we shall discuss. the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. applied in light of the special characteristics of the school environment. It was closely akin to "pure speech" [*506] which. 942 (1968). California. This complaint was filed in the United States District Court by petitioners.S. Byars. 624 (1943). In Meyer v." Burnside v. The court was equally divided. 487 (1960). through their fathers. Society of Sisters.that is. 479. Board of Regents. the Court of Appeals for the Eighth Circuit considered the case en banc.2d 744. held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students.S. this Court. Updegraff. They were all sent home and suspended from school until they would come back without their armbands. Arkansas. Issaquena County Board of Education. 203 (1948). ante. Cox v. 379 U.S.S. they met and adopted a policy that any student wearing an armband to school would be asked to remove it. It declined to enjoin enforcement of such a regulation in another high school where the students wearing freedom buttons harassed students who did not wear them and created much disturbance. Louisiana. Engel v.S. 258 F. Adderley v. Shelton v. and if he refused he would be suspended until he returned without the armband. 510 (1925). 310 U.S. They did not return to school until after the planned period for wearing armbands had expired -. [***LEdHR3B] [3B] 154 . 385 U.S. Vitale. Sweezy v. 39 (1966). Wieman v. See West Virginia v. 624 (1943). I. Florida. are available to teachers and students.S. South Carolina.ents had previously engaged in similar activities. McCollum v.S. 97 (1968). 344 U. in opinions by Mr. West Virginia v.Cf.S. Louisiana. 536. is entitled to comprehensive protection under the First Amendment. Epperson v. the Fifth Circuit ordered that high school authorities be enjoined from enforcing a regulation forbidding students to wear "freedom buttons. Petitioners were aware of the regulation that the school authorities adopted. [***LEdHR1] [1]The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. 603 (1967). 390 (1923). 364 U. It upheld the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. The principals of the Des Moines schools became aware of the plan to wear armbands. 1965. 319 U. 363 F.S. 372 U. Stromberg v. and the District Court's decision was accordingly affirmed. 2 See also Pierce v. 229 (1963). under § 1983 of Title 42 of the United States Code. Mary Beth and Christopher wore black armbands to their schools. New Hampshire. Nebraska.S. and it sought nominal damages. 421 (1962). 385 U.S. 268 U.S. 283 U. 370 U. The court referred to but expressly declined to follow the Fifth Circuit's holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school. Barnette.S. the same panel on the same day reached the opposite result on different facts. and parent. 131 (1966). Justice McReynolds. 319 U.S. 404 (1923). Thornhill v. Cf. the Court held. 354 U. we have repeatedly held. On appeal. 183. [***LEdHR2] [2] [***LEdHR3A] [3A]First Amendment rights. and Bartels v. until after New Year's Day. This has been the unmistakable holding of this Court for almost 50 years. John Tinker wore his armband the next day. student. 383 U. 749 (1966). p.S. On December 16. 359 (1931). On December 14. 363 F. 195 (1952) (concurring opinion). 88 (1940). Barnette. 234 (1957). It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners. Edwards v. Tucker. Statutes to this effect. Board of Education. without opinion. 390 U. Keyishian v. Iowa. We granted certiorari. 262 U.Supp. 971 (1966). Brown v. unconstitutionally interfere with the liberty of teacher. 383 F.S. After an evidentiary hearing the District Court dismissed the complaint. 262 U." It is instructive that in Blackwell v. 1 1 In Burnside. and they decided to participate in the program.2d 988 (1967).

273 F. Any variation from the majority's opinion may inspire fear. in our system. Knight v. Nebraska." 319 U. of Cal. There is no indication that the work of the schools or any class was disrupted. Narrowly viewed. 200 F. undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Speaking through Mr. See Epperson v. the Court said: "The Fourteenth Amendment. of course. primary First Amendment rights akin to "pure speech. 538 (1923). On the other hand. 245 (1934). in class. e. L. Meyer v.that is the basis of our national strength and of the independence 155 .S. Rev. Barnette. and our history says that it is this sort of hazardous freedom -. 1 (1949). Chicago. to hair style.S.000 students in the school system wore the black armbands.. disruptive action or even group demonstrations.Supp. 174 (D. at 402.2d 697 (1968).this kind of openness -. Justice Jackson. actual or nascent. Sellmeyer. Any departure from absolute regimentation may cause trouble. Cf. consistent with fundamental constitutional safeguards. II. See. 294 F. 1595 (1960). supra. the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials. Tenn. but none that they may not perform within the limits of the Bill of Rights. C. Academic Freedom. as now applied to the States. C. with the schools' work or of collision with the rights of other students to be secure and to be let alone. [***LEdHR4] [4]The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing. this Court held that under the First Amendment. unaccompanied by any disorder or disturbance on the part of petitioners. Barnette. and highly discretionary functions. Alabama State Board of Education. State Board of Education. however violative they may be of fundamental constitutional guarantees. at 637. 293 U. There is here no evidence whatever of petitioners' interference. Arkansas. Alabama State Board of Education. 337 U. 5th Cir. 319 U. Only five students were suspended for wearing them. supra. 247. delicate. is sometimes cited for the broad proposition that the State may attach conditions to attendance at a state university that require individuals to violate their religious convictions. D. 1961). Only a few of the 18. but there were no threats or acts of violence on school premises. D. that deviates from the views of another person may start an argument or cause a disturbance.S. Dixon v. [***LEdHR5] [5]The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. important. 613 (D. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities. at 104. The decision cannot be taken as establishing that the State may impose and enforce any conditions that it chooses upon attendance at public institutions of learning. But our Constitution says we must take this risk. These have. the case turns upon the Court's conclusion that merely requiring a student to participate in school training in military "science" could not conflict with his constitutionally protected freedom of conscience. But. W. 1961). Note. In West Virginia v. supra. a few students made hostile remarks to the children wearing armbands. or on the campus. 81 Harv. Outside the classrooms. L. Rev. the student in public school may not be compelled to salute the flag. 1045 (1968). g. Dickey v.Boards of Education not excepted. M. passive expression of opinion." The school officials banned and sought to punish petitioners for a silent. Pugsley v. 392 F. Accordingly. See also Note.2 Hamilton v. or deportment. to prescribe and control conduct in the schools.S. The case involved dismissal of members of a religious denomination from a land grant college for refusal to participate in military training. It does not concern aggressive. protects the citizen against the State itself and all of its creatures -.. 624 (1943). Ferrell v. in the lunchroom. West Virginia v. this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual. Unconstitutional Conditions.. Our problem involves direct. Dallas Independent School District. 158 Ark. M. 250 S.2d 150 (C. if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. 73 Harv. 1967). Regents of Univ. Terminiello v. A. Ala. Any word spoken.Supp.

of opposition to this Nation's part in the conflagration in Vietnam. Burnside v. the testimony of school authorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands." the prohibition cannot be sustained. 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. D. were influenced by the fact that "the Viet Nam war and the involvement of the United States therein has been the subject of a major controversy for some time. and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. in prohibiting black armbands. [***LEdHR6] [6] [***LEdHR7] [7]In order for the State in the person of school officials to justify prohibition of a particular expression of opinion.Supp. it should be handled with the ballot box and not in the halls of our public schools.was singled out for prohibition. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. When the arm band regulation involved herein was promulgated. At that time two highly publicized draft card burning cases were pending in this Court. and some even wore the Iron Cross." On the contrary." "Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed. Clearly. A protest march against the war had been recently held in Washington. often disputatious. debate over the Viet Nam war had become vehement in many localities. In the present case.. it might evolve into something which would be difficult to control." Moreover. Byars. even by the silent symbol of armbands. 5 After the principals' meeting. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference [***LEdHR8A] [8A] to the anticipation of such disruption. at least without evidence that it is necessary to avoid material and substantial interference with 156 . society. the director of secondary education and the principal of the high school informed the student that the principals were opposed to publication of his article. a particular symbol -." and if the students "didn't like the way our elected officials were handling things. Some of his friends are still in school and it was felt that if any kind of a demonstration existed. 4 It is revealing. School authorities simply felt that "the schools are no place for demonstrations.black armbands worn to exhibit opposition to this Nation's involvement in Vietnam -. The record shows that students in some of the schools wore buttons relating to national political campaigns. the District Court made no such finding. 5) 4 The District Court found that the school authorities. in this respect. at 749. Both individuals supporting the war and those opposing it were quite vocal in expressing their views. Instead." It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. 3 3 The only suggestions of fear of disorder in the report are these: "A former student of one of our high schools was killed in Viet Nam. the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression. that the meeting at which the school principals decided to issue the contested regulation was called in response to a student's statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded. traditionally a symbol of Nazism.and vigor of Americans who grow up and live in this relatively permissive. The order prohibiting the wearing of armbands did not extend to these. the regulation was directed against "the principle of the demonstration" itself. C. although we did not feel that we had convinced the student that our decision was a just one. the prohibition of expression of one particular opinion. at 972-973. A wave of draft card burning incidents protesting the war had swept the country." 258 F. They reported that "we felt that it was a very friendly conversation. supra.

In our system. 229 (1963). said. Louisiana.materially disrupts classwork or involves substantial disorder or invasion of the rights of others is.Supp. 372 U. of course. Justice McReynolds expressed this Nation's repudiation of the principle that a State might so conduct its schools as to "foster a homogeneous people. 383 U. MR. Cox v. "In order to submerge the individual and develop ideal citizens.S. state-operated schools may not be enclaves of totalitarianism. even on controversial subjects like the conflict in Vietnam. he may express his opinions. at 402. It is a public place." He said: ican schools. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. When he is in the cafeteria. In Meyer v. JUSTICE BRENNAN." Burnside v. They are possessed of fundamental rights which the State must respect. Louisiana.S. Edwards v. [rather] than through any kind of authoritative selection. said: "'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of Amer- 157 . Board of Regents.' Shelton v. and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.schoolwork or discipline. District Judge Hemphill had before him a case involving a meeting on campus of 300 students to express their views on school practices. Burnside v. or type of behavior -. Issaquena County Board of Education. their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest. Although such measures have been deliberately approved by men of great genius. C.S.S. just as they themselves must respect their obligations to the State. 385 U. or on the campus during the authorized hours. Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Byars. 5th Cir. The classroom is peculiarly the 'marketplace of ideas. Byars. In Keyishian v. School officials do not possess absolute authority over their students. A student's rights. Adderley v.S.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues. 1966). supra. students are entitled to freedom of expression of their views. speaking for the Court. supra. not immunized by the constitutional guarantee of freedom of speech. speaking for the Fifth Circuit. which for any reason -. South Carolina. Tucker. 385 U. C. 947 (D.] at 487. supra. place. Mr. As Judge Gewin. 363 F. Cf. or on the playing field. at 749. Students in school as well as out of school are "persons" under our Constitution.whether it stems from time. 131 (1966). students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. 272 F.2d 749 (C. it is also an important part of the educational process. do not embrace merely the classroom hours. at 749. They may not be confined to the expression of those sentiments that are officially approved. 536 (1965). 589. Blackwell v. 479." [***LEdHR14] [14]This principle has been repeated by this Court on numerous occasions during the intervening years. 379 U. South Carolina State College. A. Cf. [364 U. in class or out of it. But conduct by the student. and its dedication to specific uses does not imply that the constitutional rights of persons entitled to be there are to be gauged as if the premises were purely private property. He pointed out that a school is not like a hospital or a jail enclosure. 1967).'" [***LEdHR15] [15] [***LEdHR16] [16] [***LEdHR17] [17]The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. Brown v. school officials cannot suppress "expressions of feelings with which they do not wish to contend. is not constitutionally [***LEdHR9] [9] [***LEdHR10] [10] [***LEdHR11] [11] [***LEdHR12] [12] [***LEdHR13] [13]In our system. 603. In the absence of a specific showing of constitutionally valid reasons to regulate their speech. 6 In Hammond v. Florida. Among those activities is personal intercommunication among the students. therefore. 6 This is not only an inevitable part of the process of attending school. permissible. if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others. S. 39 (1966). Nebraska.S. Cf.

first. Their deviation consisted only in wearing on their sleeve a band of black cloth.Supp. Byars. 158. 1967) (expulsion of student editor of college newspaper). second. MR. the First Amendment rights of children are co-extensive with those of adults. C. or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise. the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities. These petitioners merely went about their ordained rounds in school. Reversed and remanded. S. HARLAN DISSENT MR.. We express no opinion as to the form of relief which should be granted. at least in some precisely delineated areas. Alabama State Board of Education. free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact.2d 744. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet. CONCUR BY: STEWART. 1966). 947 (D. 613 (D. 363 F. New York. WHITE CONCUR MR. and with its judgment in this case. school discipline aside. They caused discussion outside of the classrooms. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. 629.like someone in a captive audience -. concurring. South Carolina State College. to make their views known." Id. a case relied upon by the Court in the matter now before us. [***LEdHR8B] [8B] [***LEdHR22] [22]If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict. In the circumstances of the present case. 321 U. 272 F. 1967) (orderly protest meeting on state college campus). that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest. DISSENT BY: BLACK. We reverse and remand for further proceedings consistent with this opinion. 273 F.S. to influence others to adopt them. M. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce. Although I agree with much of what is said in the Court's opinion. As we have discussed. JUSTICE WHITE.is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. The Constitution says that Congress (and the States) may not abridge the right to free speech. Cf. the prohibition of the silent. by their example. this being a matter for the lower courts to determine. is no less offensive to the Constitution's guarantees. dissenting. and. passive "witness of the armbands. not more than two inches wide. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. C. Prince v." in the United States is 158 . 748 (C. it would be obvious that the regulation would violate the constitutional rights of students. our Constitution does not permit officials of the State to deny their form of expression.S. Massachusetts. concurring. I continue to hold the view I expressed in that case: "[A] State may permissibly determine that. Cf. 5th Cir.Supp. 390 U. Indeed. but no interference with work and no disorder." as one of the children called it. Ala. This provision means what it says.[***LEdHR18] [18] [***LEdHR19] [19] [***LEdHR20] [20] [***LEdHR21] [21]Under our Constitution. . at 649-650 (concurring in result). I deem it appropriate to note. A. JUSTICE BLACK. a child -. I had thought the Court decided otherwise just last Term in Ginsberg v. Dickey v. The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools . I cannot share the Court's uncritical assumption that. D. and. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. JUSTICE STEWART. . While I join the Court's opinion. In the circumstances. that I do not subscribe to everything the Court of Appeals said about free speech in its opinion in Burnside v. C. Hammond v. or to supervised and ordained discussion in a school classroom. and no disturbances or disorders on the school premises in fact occurred.

a third member of the Tinker family was 13. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked" chiefly by disputes with Mary Beth Tinker. First. I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that the few armband students did not actually "disrupt" the classwork. Hope Tinker.. a Methodist minister without a church. the Court clearly stated that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. 15 years old. took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. grammar schools. 1 The Court brought [*516] this particular case here on a petition for certiorari urging that the First and Fourteenth Amendments protect the right of school pupils to express their political views all the way "from kindergarten through high school. used profane language. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech." Even a casual reading of the record shows that this armband did divert students' minds from their regular lessons. and that talk. 8 years old. Their father. nonprotesting students had better let them alone. In Cox v. This Court has already rejected such a notion.in ultimate effect transferred to the Supreme Court. apparently only seven out of the school system's 18.S. 536." Assuming that the Court is correct [***744] in holding that the conduct of wearing armbands for the purpose of conveying political ideas is protected by the First Amendment. Another student who defied the school order and insisted on wearing an armband in school was Christopher Eckhardt.000 pupils deliberately refused to obey the order. detailed testimony by some of them shows their armbands caused comments. in the eighth grade. the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech -. comments. who was in the second grade. 490 (1949). an 11th grade high school pupil. Giboney v. who wore her armband for her "demonstration. One defying pupil was Paul Tinker. for example. I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would. can defy and flout orders 159 . or high schools. the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions are not "unreasonably" disrupted. the Court arrogates to itself.S. or were violent in any manner."symbolic" or "pure" -. 379 U." Here the constitutional right to "political expression" asserted was a right to wear black armbands during school hours and at classes in order to demonstrate to the other students that the petitioners were mourning because of the death of United States soldiers in Vietnam and to protest that war which they were against. the poking of fun at them. made John Tinker "self-conscious" in attending school with his armband. and a warning by an older football player that other. 336 U. cf. Ordered to refrain from wearing the armbands in school by the elected school officials and the teachers vested with state authority to do so. Secondly. g.and whether the courts will allocate to themselves the function of deciding how the pupils' school day will be spent. that is. e. an 11th grade pupil and a petitioner in this case. 554 (1965). Louisiana." While the record does not show that any of these armband students shouted. the Court concludes that the wearing of armbands is "symbolic speech" which is "akin to 'pure speech'" and therefore protected by the First and Fourteenth Amendments. Empire Storage & Ice Co. the deci- sion as to which school disciplinary regulations are "reasonable. His mother is an official in the Women's International League for Peace and Freedom.." As I read the Court's opinion it relies upon the following grounds for holding unconstitutional the judgment of the Des Moines school officials and the two courts below. And I repeat that if the time has come when pupils of state-supported schools. 1 The petition for certiorari here presented this single question: "Whether the First and Fourteenth Amendments permit officials of state supported public schools to prohibit students from wearing symbols of political views within school premises where the symbols are not disruptive of school discipline or decorum. another. was 11 years old and in the fifth grade. is paid a salary by the American Friends Service Committee. and a fourth member of the same family was John Tinker... warnings by other students. kindergartens. etc. Finally. rather than to the State's elected officials charged with running the schools.

Adkins.' said Lee Ambler. was able to conclude in 1963: "There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable. so much so that this Court in Ferguson v. 404 (1923). Burns. Coppage. It will be a sad day for the country. 555. 3 Neither Thornhill v.S. Louisiana. His proposed legislation did not pass. or from being elected members of the boards of education. nor Brown v." "contrary to fundamental 'decency. unwise or incompatible with some particular economic or social philosophy.. and none of these cases embraced Mr.of school officials to keep their minds on their own schoolwork. Florida. Alabama. held that the Fourteenth Amendment made the First applicable to the States. 385 U." The Ferguson case totally repudiated the old reasonableness-due process test.S." The United States District Court refused to hold that the state school order violated the First and Fourteenth Amendments. Edwards. 283 U. I think the constitutional change should be plainly. 88.S. it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. and forthrightly stated for the benefit of the bench and bar. has filed nominating papers to run for town park commissioner in the March election. the town counsel. which is protected by the First and Fourteenth Amendments. 262 U.. the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they "shock the conscience" or that they are "unreasonable. 390 (1923). Cox v." "arbitrary. p. 379 U. "The doctrine that prevailed in Lochner. Holding that the protest was akin to speech.S. related to schoolchildren at all. 296. and Bartels v. 131. This constitutional test of reasonableness prevailed in this Court for a season. it appears to me. 536. 383 U. .S. Skrupa.S. where he has a top scholastic record. California. Iowa. The opinions in both cases were written by Mr." indicating. 3 In Cantwell v. 730. Charles Academy.S. Justice McReynolds' reasonableness test. 229..Todd R.Supp. is resurrecting that old reasonableness-due process test.S. 2 2 The following Associated Press article appeared in the Washington Evening Star. 303-304 (1940). cited by the Court as a "compare. and like cases -. South Carolina. Justice Holmes. Barnette. that court held that the school order was "reasonable" and hence constitutional. Other cases cited by the Court do not. 258 F. 372 U. Louisiana.has long since been discarded. Meyer v. Mr. that these two cases are no longer the law.S. 971. Justice McReynolds. If the majority of the Court today. 16. were not rested to the slightest extent on the Meyer and Bartels "reasonableness-due process-McReynolds" constitutional test. Hennessy. A-2. Edwards v. Nebraska.S. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. I believe. I suppose. when the present-day Court returns to the McReynolds due process concept. Two cases upon which the Court today heavily relies for striking down this school order used this test of reasonableness. 310 U. The next logical step. 1969. Stromberg v. Justice Sutherland.' "Todd is a junior in Mount St." "irrational.'" or some other such flexible term without precise boundaries. "'I can see nothing illegal in the youth's seeking the elective office. 'But I can't overlook the possibility that if he is elected any legal contract entered into by the park commissioner would be void because he is a juvenile. 1: "BELLINGHAM. clearly rejecting the "reasonableness" test. would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting. and Adderley v. 624. this Court said: 160 . January 11. 359. and Brown relied on the vagueness of state statutes under scrutiny to hold them unconstitutional. follow the McReynolds reasonableness doctrine. There was at one time a line of cases holding "reasonableness" as the court saw it to be the test of a "due process" violation. 310 U. as implied. Connecticut. after a thorough review of the old cases. dissented from the holdings as did Mr. West Virginia v.that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely -. 726. 262 U. (AP) -. Mass. It was this test that brought on President Franklin Roosevelt's well-known Court fight. 319 U. who opposed this reasonableness test.S. 39. unequivocally. that is. by agreeing to the opinion of my Brother FORTAS. 729. but the fight left the "reasonableness" constitutional test dead on the battlefield. and that the two forbade a State to compel little schoolchildren to salute the United States flag when they had religious scruples against doing so. 372 U. and Thornhill. col.

." I deny. grammar school. 342 U. It makes no reference to "symbolic speech" at all. Although Mr. or any other court. It may be that the Nation has outworn the old-fashioned slogan that "children are to be seen not heard." or was "contrary to fundamental concepts of the English-speaking world. 165. be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn. that such a law was no more unreasonable than it would be to bar the teaching of Latin and Greek to pupils who have not reached the eighth grade. Cox v." Even Meyer did not hold that. 39. The true principles on this whole subject were in my judgment spoken by Mr. The State had there passed a law barring students from peaceably assembling in Greek letter fraternities and providing that students who joined them could be expelled from school.S. e. g. Thus the Amendment embraces two concepts. Mississippi University in 237 U. The law was attacked as violative of due process and of the privileges and immunities clause and as a deprivation of property and of liberty. teachers in state-controlled public schools are hired to teach there. The Court in its next to the last paragraph made this statement which has complete relevance for us today: "It is said that the fraternity to which complainant belongs is a moral and of itself a disciplinary force. I think the majority's reason for invalidating the Nebraska law was that it did not like it or in legal jargon that it "shocked the Court's conscience." as the Court has sometimes said." "offended its sense of justice.S. not teach. The truth is that a teacher of kindergarten.S. and when he pleases. -freedom to believe and freedom to act. This need not be denied."The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. under the Fourteenth Amendment. where he pleases. Nebraska. as I do. 128. 596-597.S. Justice McReynolds may have intimated to the contrary in Meyer v.S. Justice Holmes and Mr. 347 U. This Court rejected all the "fervid" pleas of the fraternities' advocates and decided unanimously against these Fourteenth Amendment arguments. The first is absolute but. One can well agree with Mr. It is a myth to say that any person has a constitutional right to say what he pleases. and inspired its members to study harder and to obey better the rules of discipline and order. 536. The original idea of schools." but one may. California. Justice McKenna for the Court in Waugh v. It is to be remembered that the University was established by 161 . This law would appear on the surface to run afoul of the First Amendment's freedom of assembly clause. 379 U. Louisiana. therefore. Florida. Conduct remains subject to regulation for the protection of society. supra. or into the Supreme Court. certainly a teacher is not paid to go into school and teach subjects the State does not hire him to teach as a part of its selected curriculum. Justice Sutherland. what it did was to strike down as "unreasonable" and therefore unconstitutional a Nebraska law barring the teaching of the German language before the children reached the eighth grade. In fact. See. it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. But whether such membership makes against discipline was for the State of Mississippi to determine. Nor are public school students sent to the schools at public expense to broadcast political or any other views to educate and inform the public. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. See.. a complete constitutional right to go into those places contrary to their rules and speak his mind on any subject he pleases. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. 589. which I do not believe is yet abandoned as worthless or out of date. In my view. in the nature of things. taught discipline. It was argued that the fraternity made its members more moral. Our Court has decided precisely the opposite. 555. g. e. the second cannot be. Adderley v. Nor does a person carry with him into the United States Senate or House. was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. 385 U. The constitutional inhibition of legislation on the subject of religion has a double aspect. I hope. or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into a Catholic church or Jewish synagogue. On the one hand. California. Rochin v. and Irvine v. On the other hand. it safeguards the free exercise of the chosen form of religion. that it has been the "unmistakable holding of this Court for almost 50 years" that "students" and "teachers" take with them into the "schoolhouse gate" constitutional rights to "freedom of speech or expression.

The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. like all other citizens. even with this Court's expert help from Washington. and elected school officials to surrender control of the American public school system to public school students. I. the record amply shows that public protest in the school classes against the Vietnam war "distracted from that singleness of purpose which the State [here Iowa] desired to exist in its public educational institutions." Here the Court should accord Iowa educational institutions the same right to determine for themselves to what extent free expression should be allowed in its schools as it accorded Mississippi with reference to freedom of assembly. and destruction. without being told. subjects all the public schools in the country to the whims and caprices of their loudest-mouthed." (Emphasis supplied. some of the wounded and the dead being their friends and neighbors. wholly without constitutional reasons in my judgment. for one. Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. This case.390 public school systems 4 in our 50 States. cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war. therefore. know. like parental discipline. School discipline. This is the more unfortunate for the schools since groups of students all over the land are already running loose. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. parents. of course. as I have pointed out before. have already engaged in rioting. p. but maybe not their brightest. that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Here a very small number of students have crisply and summarily refused to obey a school order designed to give pupils who want to learn the opportunity to do so.to be better citizens. not to talk politics by actual speech. Many of these student groups. are operated to give students an opportunity to learn. able. wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers. 578. too many of school age. and willing to defy their teachers on practically all orders. it is nothing but wishful thinking to imagine that young. sit-ins. 406. members of this Court. I dissent. Table No. Of course students. is an integral and important part of training our children to be good citizens -. And the same reasons are equally applicable to curtailing in the States' public schools the right to complete freedom of expression. therefore. Turned loose with lawsuits for damages and injunctions against their teachers as they are here. and the enactment of the statute may have been induced by the opinion that membership in the prohibited societies divided the attention of the students and distracted from that singleness of purpose which the State desired to exist in its public educational institutions. to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands.the State and is under the control of the State. like other people. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. lie-ins. But even if the record were silent as to protests against the Vietnam war distracting students from their assigned class work. And. like Mississippi's university. and smash-ins.) It was on the foregoing argument that this Court sustained the power of Mississippi to curtail the First Amendment's right of peaceable assembly. It was. 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. I wish. as is all too familiar to all who read the newspapers and watch the television news programs. 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. It is not for us to entertain conjectures in opposition to the views of the State and annul its regulations upon disputable considerations of their wisdom or necessity. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents. conducting break-ins. teachers. students. immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. 162 . 4 Statistical Abstract of the United States (1968). property seizures. Iowa's public schools. or by "symbolic" speech. and elected school officials. am not fully persuaded that school pupils are wise enough. We cannot close our eyes to the fact that some of the country's greatest problems are crimes committed by the youth. to run the 23.

11 L Ed 2d 1116. in cases like this.MR. Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation. 2 L Ed 2d 1706. I certainly agree that state public school authorities in the discharge of their responsibilities are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. Regulations as to fraternities and similar associations connected with educational institution. REFERENCES The Supreme Court and the right of free speech and press 15 Am Jur 2d. 62 L Ed Index to Anno. Am Jur.) 18 Am Jur Pl & Pr Forms. Schools Annotation References: The Supreme Court and the right of free speech and press. dissenting. Validity. 18:141. Constitutional Law 341 et seq. JUSTICE HARLAN. Schools ALR Quick Index. subd III superseded 10 ALR3d 389. 93 L Ed 1151. construction. 134 ALR 1274.8. Validity of regulation by public school authorities as to clothes or personal appearance of pupils. Constitutional Law 925. Schools. 10 ALR3d 389. Use of school property for other than public school or religious purposes. Colleges and Universities 3. 14 ALR 3d 1201. I would affirm the judgment below. 94 ALR2d 1274. Constitutional Law. Freedom of Speech and Press. I would. 928 ALR Digests. Forms 18:141. 925.7. 16 Am Jur 2d. 16 L Ed 2d 1053. At the same time I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions.. 163 . cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -for example. 21 L Ed 2d 976. 925. a desire to prohibit the expression of an unpopular point of view. Schools (1st ed 167 et seq. while permitting expression of the dominant opinion. Constitutional Law 791. and application of statutes or regulations concerning recreational or social activities of pupils of public schools. To translate that proposition into a workable constitutional rule. Colleges and Universities 22.1 US L Ed Digest. Schools 60.

164 .

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer: Get 4 months of Scribd and The New York Times for just $1.87 per week!

Master Your Semester with a Special Offer from Scribd & The New York Times