First Amendment, Tinker v Des Moines

[© tweed]

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=393&invol=503

[Yates]

The armband could be considered symbolic speech, which is protected under the First Amendment.

[Emsworth]

The armband could be considered symbolic speech, which is protected under the First Amendment.

Wearing an armband definitely constitutes symbolic speech. That point alone, however, does not determine the outcome of the case.

The First and Fourteenth Amendments provide that the government is not permitted to censor the content of speech. However, neither amendment recognizes a right to engage in speech wherever one pleases. The Constitution does not guarantee the right to speak in a government building, just as it does not guarantee the right to bear arms in a government building.

There is no doubt in my mind that the government is fully entitled to restrict speech on its own property. The regulation in question in Tinker is completely constitutional.

[Yates]

The armband could be considered symbolic speech, which is protected under the First Amendment.

Wearing an armband definitely constitutes symbolic speech. That point alone, however, does not determine the outcome of the case.

The First and Fourteenth Amendments provide that the government is not permitted to censor the content of speech. However, neither amendment recognizes a right to engage in speech wherever one pleases. The Constitution does not guarantee the right to speak in a government building, just as it does not guarantee the right to bear arms in a government building.

There is no doubt in my mind that the government is fully entitled to restrict speech on its own property. The regulation in question in Tinker is completely constitutional.

The government can censor speech in there is a clear and present danger, as determined by Schenck v. United States.  Armbands would hardly be classified as a clear and present danger.  However, I agree with you that the government had a right to enforce its rule in the Tinker case.  Students have, virtually, no rights, and school administrators are granted excessive leeway in determining what constitutes a danger or disruption.

[Emsworth]

The government can censor speech in there is a clear and present danger, as determined by Schenck v. United States.

Schenck v. United States had nothing to do with speech on government property. It was related to speech in general.

If the government prohibited the wearing of armbands, period, the law would be unconstitutional. But if it prohibited the wearing of armbands in schools, then the law is perfectly valid.

[nclib]

Students have, virtually, no rights, and school administrators are granted excessive leeway in determining what constitutes a danger or disruption.

"Students do not shed their constitutional rights... at the schoolhouse gate"

[Alcon]

Am I the only one who sees the inconsistency on students' Constitutional rights as a huge potential loophole?  The government can effectively force children to go to school by jailing their parents if they do not; then, the government can deprive them of their Constitutional rights and take their property with little checks and balances.  It may be paranoid, but it seems kind of scary.

[Nym90]

Students should be permitted freedom of speech in school, so long as it is not disruptive to the overall mission and purpose of the school. Clearly wearing armbands is not disruptive.

Searching lockers, however, is a little different, since the school owns the locker. They should be able to consent to a warrant to search it since they own it and are merely giving you permission to use it.

[Alcon]

Students should be permitted freedom of speech in school, so long as it is not disruptive to the overall mission and purpose of the school. Clearly wearing armbands is not disruptive.

Searching lockers, however, is a little different, since the school owns the locker. They should be able to consent to a warrant to search it since they own it and are merely giving you permission to use it.

The problem I see, again, is that the government can effectively force the children to enter a zone where their rights of property and free speech are stripped.  That is, I think, dangerous.  Besides, I do not understand the Constitutional application here - "we'll apply it unless it's inconvenient"?

[Nym90]

Students should be permitted freedom of speech in school, so long as it is not disruptive to the overall mission and purpose of the school. Clearly wearing armbands is not disruptive.

Searching lockers, however, is a little different, since the school owns the locker. They should be able to consent to a warrant to search it since they own it and are merely giving you permission to use it.

The problem I see, again, is that the government can effectively force the children to enter a zone where their rights of property and free speech are stripped.  That is, I think, dangerous.  Besides, I do not understand the Constitutional application here - "we'll apply it unless it's inconvenient"?

I agree that students should not be stripped of rights at the schoolhouse door. But I do think that a locker is different than say someone's apartment because you aren't paying for it, it's entirely the school's property.

I think one could well argue that we all own government property in a sense, though.

[jerusalemcar5]

When will these dumb minor learn.  THEY DON'T HAVE RIGHTS!  GET OVER IT! 

[MaC]

Am I the only one who sees the inconsistency on students' Constitutional rights as a huge potential loophole?  The government can effectively force children to go to school by jailing their parents if they do not; then, the government can deprive them of their Constitutional rights and take their property with little checks and balances.  It may be paranoid, but it seems kind of scary.

I oppose compulsary education.  Even if education is to be considered a positive right, it should still be a choice albeit a bad one to not attend.

[TomC]

Students do have a right...or rather government has an obligation to treat students equally. The problem with the suspension of Tinker, IIRC, was that there was no prior rule about the armbands; it is likely the students were suspended in part due to what they were protesting. Without rules in place, a school administration or a school board brings huge ethical questions on themselves if they are perceived as punishing students because of their beliefs, rather than potentially disruptive acts. I believe that's what happened in Tinker and why the court ruled in favor of the student and his family.

Here's a question we're facing at our school: we have a rule in place that students can have cell phones on their person but may not have them on or use them during the school day. A student last week had one on, it rang during class, the teacher confiscated it and turned it in to the office. Apparently, though this is hearsay, the student turned the phone off before it was taken. Later, though I'm not sure how much, the administration turned on the phone and scrolled through the text messages, finding a message about meeting up for a drug deal. Based on this discovery, the student was searched and some illegal pills were discovered. in our district, that's a zero-tolerance offense, meaning he will be expelled from the school system for one year. The question is, does administration have the right to go through the contents of his cell phone?

Incidentally, the next day, three students wore shirts saying "FREE JOHNNY." They were merely told not to wear them back the next day.

[Sam Spade]

FYI, the Tinker test was modified considerably by two decisions in the 1980s:  Fraser and Hazelwood (I forget the exact titles).

I actually know a lot about this area of law, so if anyone has a question, feel free to ask.

Right now, the USSC is reviewing a case, Frederick v. Morse, that I believe will probably clear up a lot of unsettled issues that the three above-stated cases have produced.