Tinker V. Des Moines: The Tinkers That Broke A Free Speech Barrier

Freedom of speech and expression, a fundamental human right, allows the U.S. to communicate on important issues in society. Unfortunately, it is frequently ignored during times of war. In 1919, in the Schenk V. United States case, Justice Holmes wrote, “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.” The right to freedom of speech is often challenged.

In 1765, John Adams, one of the seven founding fathers said, “Let us dare to read, think, speak and write.” The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” During the Cold War, many people protested the United State’s involvement in the Korean War and the Vietnam War. Although many young and old people freely exercised their freedom of speech rights in their protest, some were not protected in exercising these rights. Among these protesters, secondary students Mary Beth Tinker, John Tinker, and Chris Eckhart protested the war in Vietnam by wearing black armbands to school to symbolize deaths on both sides of the Vietnam War.

The administration of Warren Harding High School, Iowa disapproved of this and suspended the children for breaking school policy prohibiting the sporting of wearing black armbands. The Tinkers responded by filing a lawsuit based on the First Amendment. The case became known as Tinker V. Des Moines, 1968-1969. The plaintiffs, Mary Beth and John Tinker and Christopher Eckhardt sought the benefits of free speech at school. The Tinker case tested and cemented students’ rights to free speech in school and unraveled the door to more public protests by students.

Background

The Cold War was a period of tension between the two great powers, Soviet Union and the U.S., following WWII. The two countries disagreed on political and economic fronts and indirectly fought each other through proxy countries. Many countries during this time disagreed (or feared) communism or capitalism, leading to the Vietnam War. The war began in 1955 and lasted 20 years. North Vietnam, a communist country, pressured South Vietnam, a decromatic republic to convert to communism. South Vietnam and the war began. The U.S. came to South Vietnam’s aid to prevent the spread of communism.

In the U.S., the Civil Rights Movement was in full force and protesting swelled. One of the important activists during the time was Martin Luther King Jr. (MLK). In 1963, King gave his most famous speech, “I Have a Dream,” in Washington. “I have a dream that one day this nation will rise up and live out the true meaning of its creed: we hold these truths to be self-evident: that all men are created equal.” His passion for freedom and equality between all races drew supporters to follow him in his quest. Around the same time, students of color in Birmingham, Alabama followed MLK's words and decided to leave school and march for their civil rights. Many students were arrested, but more continued to march the next day. As they marched, they were hosed with water, beaten with batons, and the white policemen sent out dogs to chase them down. As a result of this march, city leaders agreed to desegregate public facilities in Birmingham, Alabama and free all of the protesters who were arrested.

Protests of the Vietnam War

The protests against U.S involvement in the Vietnam War were subtle but gained more popularity after the U.S. began bombing North Vietnam in 1965. Many young and old people held up signs and went on anti-war marches. People protested against the war because it was the first televised war, and for the first time, the public was not comfortably removed from the harsh realities; people believed it was a meaningless war; there were so many deaths and atrocities in Vietnam that people rebelled against the draft. A newspaper article, “The Moral Case for Draft Resistance” in the New York Times reported that, hundreds of young men protested by burning draft cards as an act of defiance. In addition, university students around the country protested against the main Selective Service Act organizations. Millions of other U.S. residents joined the students in protest. Some of the devastating slogans that were conveyed included, “Hey, hey LBJ! How many kids did you kill today?” Lyndon B. Johnson (LBJ), the 36th president of the United States increased the monthly number of draftees to the war. As the Vietnam War dragged on, people realized that there seemed to be no end. The live broadcasting of the war on TV continued to fuel American’s anger and energy to stand for what they believed.

The Plaintiff

The Tinker family grew up in a working middle-class neigborhood. In 1957, the Tinker family moved to Des Moines, Iowa from Atlantic, New Jersey. The father, Leonard Tinker lost his job as an ordained minister at the Methodist Church. In Des Moines, Mr. Tinker found a new job and became a representative of the American Friends Service Committee (AFSC). The AFSC was an organization in the U.S. that worked for peace and justice. Lorena Jeanne Tinker, his wife, was also involved in many civil rights groups. She attended a project called, Mississippi’s “Freedom Summer”, which was a U.S. campaign to register as many African-American voters in 1964. Due to their parents’ examples, Mary Beth, John, Hope, and Paul Tinker realized the value of social activism.

In the mid-1960s, Lorena Tinker told her children about the experience she had with Martin Luther King Jr., after he gave a speech in Des Moines. The two discussed fears of what could happen to their children in the future. King asked Lorena if she was concerned about her children’s safety. Lorena replied that she did care about her children’s safety, but if something was important enough, and it involved risks to the children, it would be unavoidable.

To the Tinker family, anti-war marches were a tradition. Lorena remembered, “People would say to us, ‘Why are you taking your children?... You’re damaging your children or their future.’ And we said, ‘We don’t think we’re damaging them. We’re committed to certain values and we want our children to be part of it, and they would jump in the car and go with us willingly”. Mary Beth and John felt sincere in their beliefs and values.

The Eckhardt family also lived in Des Moines where their father, William Eckhardt, was a clinical psychologist. The mother of the Eckhart family, Margaret Eckhart was involved in an organization called Women’s International League for Peace (WILPF). The Tinker family also was part of this organization, which was working for world peace and against the Vietnam War. Because of Christopher’s mother’s involvement in these organizations, he was exposed at a young age to famous civil rights advocates such as Julian Bond and John Howard Griffin, the author of the book, “Black Like Me”. The Eckhart family visited the Unitarian Church where there was a group called the Liberal Religious Youth (LRY), in which Christopher was very active. The LRY was an organization that was mostly controlled by teens and focused on antiwar, counterculture, and civil rights activities.

When Mary Beth Tinker was 13 years old, she watched the news on television about the Vietnam War and decided to wear black armbands to school (with other students, including her brother, John Tinker and Christopher Eckhart) to mourn for the deaths of the lives lost on both sides of the war. (transition sentence here) Many people threatened to harm the Tinker family. Mary Beth recalled in an interview, “...people against us were very threatening and someone threatened to blow up our house on Christmas Eve. They threw red paint at our house calling us communists…” Mary received a phone call that said, “Is this Mary Beth Tinker… I’m going to kill you!” Even a radio talk show host said he would pay for the legal defense of anyone who went after the Tinkers with a shotgun. Although the Tinkers’ lives were threatened, Mary Beth compared this incident to “Birmingham Campaign” protesters and how they have been hosed and murdered. The Tinkers always felt that, “..what was happening to us was really minimal compared to what [the protestors] were dealing with.”- Mary Beth. Schools across Des Moines overheard the plan about wearing black armbands.

As the days went by, tensions were increasing against the Tinkers and on December 17th, 1965, Mary Beth Tinker, John Tinker, Christopher Eckhardt and two others got suspended from school. The school board had already made a rule that prohibits black armbands because they overheard the children’s plans before the protest started and believed that the protest would disrupt the regular school day. The five students returned back to school after winter break and wore black clothing for the rest of the year in protest of the school board policy. Parents of these young children reacted fast and sued the school district with lawyers from the American Civil Liberties Union (ACLU). The Tinkers appealed to the United States Court of the Eighth Circuit and decided to advance to the Supreme Court.

Tinker V. Des Moines Court Case

On November 12th, 1968, the court case, “Tinker V. Des Moines” was argued in the Supreme Court over whether the prohibition against wearing black armbands would violate the students’ freedom of speech protection under the First Amendment. Justices who supported Tinker were Justices Warren, Douglas, Brennan, White, Fortas, Stewart, and Marshall. The two who opposed were Justices Black and Harlan. In Justice Fortas’ opinion, 'It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Justice Fortas wrote the majority opinion and argued that because Warren Harding High School was not disturbed by the armbands, the Court found no reason to restrict the student’s expressions. In Fortas’s opinion, the school did not prohibit all controversial symbols, but only the specific symbols protesting the Vietnam War.

This was an unlawful and unconstitutional act. Justice Hugo L. Black argued that the First Amendment does not allow others to express their opinion freely at any time. Justice John M. Harlan argued that school officials should be afforded with wide authority. He states, 'I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns.” At the end of the court case, the final decision was voted 7-2 in favor of the Tinkers. (say something about the impact - the [public’s, schools, or families] reaction)

Impact of the Court’s Ruling

After the Supreme Court Ruling, courts developed a new test called the “Tinker Test”, which is still used today in courts to see if the schools’ interests violate students’ rights the First Amendment provides. Students have the right to protest in school as long as it is not disruptive, as protesting and freedom of expression is encouraged in the United States. The decision of the court case, “Tinker V. Des Moines”, made it possible for students to have the right to protest.

Nevertheless, two court cases since “Tinker V. Des Moines” involved plaintiffs who took the Tinker decisions and stretched their freedom of speech rights beyond reason. The two court cases were Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier.

Bethel School District No. 403 v. Fraser

In 1983, high schooler Matt Fraser nominated a student, Jeff Kuhlman, for student elective office through a speech. Before he presented his speech in the Bethel School’s assembly, two teachers warned him that the speech was inappropriate. Those who didn’t want to attend went to study hall. As Fraser delivered his speech about Jeff Kuhlman, he described him in a sexual metaphor. For example, “I know a man who is firm -- he’s firm in his pants, he’s firm in his shirt, his character is firm... ” A day after Fraser delivered his speech, he was suspended for three days and had his name removed from the list of candidates for graduation speaker. Fraser states, “One teacher told me it would ‘raise some eyebrows.'' But no teacher told me that it violated school policy.” A day after Fraser delivered his speech, he was informed that he would be suspended for three days and his name would be removed from the list of candidates on the ballot for graduation speaker. Although his name was removed, Fraser received the 2nd highest amount of votes from his classmates to speak at graduation. The school continued to limit Frasers permission to speak. He decided to send a grievance to the Bethel School District. After his grievance was denied, Fraser’s father filed a First Amendment lawsuit.

The final decision for the lower (9th Circuit) court case was that the school violated Fraser’s speech rights and that it was not difference between this court case and the “Tinker V. Des Moines” court case. The school appealed to the U.S. Court of the 9th circuit and went to the Supreme Court. On July 7th, 1986, the court ruled for the school with the decision 7-2 because they found that the school’s decision was reasonable to not prohibit the use of vulgar language was unreasonable. Using vulgar and lewd language was not applicable to the 'fundamental values of public school education.' This court case reinforced the Tinker V. Des Moines case by pushing the limits of First Amendment Rights.

Hazelwood School District v. Kuhlmeier

In 1983, students in Journalism II class at Hazelwood East High School, St. Louis County, Missouri were about to turn in their final draft to the student-school newspaper, “The Spectrum”. They submitted their papers to their advisor, Howard Emerson as he carefully followed the procedures before he sent it to the principal. Robert Reynolds, the school principal was concerned about two articles.

The first article was about student pregnancies which included sex and birth control. The principal did not want the students of 9th grade to read about this. The second article was about the impact of divorced parents. Reynolds knew that the deadline for publishing the Spectrum was coming up fast and he was afraid that he would fail to meet the deadline if he told the students to make changes on their articles. So, the principal made a swift choice and told Emerson to extract the two articles and publish the paper. Cathy Kulmeier, one of the three journalists argued that the school violated their First Amendment Rights. The students brought the case to the U.S. District Court for the Eastern District of Missouri.

As the results came out, the students were disappointed how the court disagreed with them, so they appealed to the Court of Appeals for the Eighth Circuit. The result of this court case reversed the decision of the lower court by saying that the school had violated the students’ first amendment rights. Meanwhile, the school decided to appeal the decision of the court of appeals and advance to the Supreme Court. At the end, the court decided that the school did not violate the student’s rights. The school did not offend the students rights by exercising their editorial control which was “reasonably related to legitimate pedagogical concern” according to the court. This court case has also refined the meaning of free speech in the U.S. The issues involved in this case were different from those that were in the Court ruled on in Tinker v. Des Moines. Hazelwood v. Kuhlmeier: Background Summary & Questions.

Conclusion

The Tinker case showed how Americans embrace in their free speech rights and was a reflection on how far some will go to excersise their right. In a world full of confusion, there is always an opportunity to stand up for what is right. “Sometimes when you speak up, it may not always be so popular, but things change.” - Mary Beth Tinker, 2015.