Political Speech
Tinker v. Des Moines
and
Texas v. Johnson
The Bill of Rights Institute
Tribune Tower
Chicago, IL, April 24, 2006
Artemus Ward
Department of Political Science
Northern Illinois University
Political Speech
 1st Amendment: “Congress shall make no
law . . . abridging the freedom of speech,
or of the press. . .”
 As distinguished from other types of
speech (commercial speech, obscene
speech, etc.) the Supreme Court has
consistently held that political speech is
the most protected form of expression.
Tinker v. Des Moines (1969)
 John Tinker, 15, was a student at a
public high school in Des Moines,
Iowa. Mary Beth Tinker, his 13-yearold sister, attended junior high school.
After meeting with a group of adults
and students, they decided to publicize
their objections to the Vietnam War by
wearing black armbands to school.
School authorities became aware of the plan and adopted a policy that any
student wearing an armband would be asked to remove it; if the student
refused, the student would be suspended until he or she returned to school
without the armband. The Tinker children wore armbands and were
suspended from school.
Tinker v. Des Moines (1969)
 Do students have the right to
political expression on school
grounds?
 Does the state have the authority to
restrict speech under its police
powers: protect the health, safety,
welfare, and morals of the people?
 Is there a difference between
elementary, middle, high school, and
college students for free speech
purposes?
Tinker v. Des Moines (1969)
 Justice Fortas wrote for the Court: “In
order for the state, in the person of
school officials, to justify prohibition
of a particular expression of opinion, it
must be able to show that its action
was caused by something more than a
mere desire to avoid the discomfort
and unpleasantness that always
accompany an unpopular viewpoint.”
 Students do not “shed their
constitutional rights when they enter
the schoolhouse door.”
Tinker v. Des Moines (1969)
 The Court ruled that this symbolic
speech--"closely akin to pure speech"-could only be prohibited by school
administrators if they could show that
it would cause a substantial disruption
of the school's educational mission.
 The school allowed other forms of
political expression such as Nixon and
Humphrey campaign button and the Iron
Cross.
 School isn’t just about attending classes
and learning prescribed material. It is
also about intercommunication among
the students.
Tinker v. Des Moines (1969)
 In dissent, 83-year-old Justice
Black was livid . . .
 “I have never believed that
any person has a right to give
speeches or engage in
demonstrations where he
pleases and when he
pleases.”
Tinker v. Des Moines (1969)
J. Black’s dissent continued . . .
“One does not need to be a prophet or the son of a prophet to know that
after the Court's holding today some students in Iowa schools and indeed
in all schools will be ready, able, and willing to defy their teachers on
practically all orders. This is the more unfortunate for the schools since
groups of students all over the land are already running loose, conducting
break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups,
as is all too familiar to all who read the newspapers and watch the
television news programs, have already engaged in rioting, property
seizures, and destruction. They have picketed schools to force students
not to cross their picket lines and have too often violently attacked
earnest but frightened students who wanted an education that the pickets
did not want them to get. Students engaged in such activities are
apparently confident that they know far more about how to operate
public school systems than do their parents, teachers, and elected school
officials.”
Can you burn the American flag?
Texas v. Johnson (1989)
 During the 1984 Republican
National Convention re-nominating
President Reagan, Johnson burned
an American flag in protest.
 As it was burning, he and his fellow
protesters chanted "America, the
red, white, and blue, we spit on
you."
 He was charged with violating the
Texas flag desecration law,
convicted, and sentenced to one
year in prison and a $2,000 fine.
 47 other states, and the U.S. also
had flag-desecration laws.
Texas v. Johnson (1989)
 Justice Brennan delivered the 5-4
majority opinion striking down all flag
desecration laws.
 The Court said that Johnson was engaging
in political speech.
 The state my not prohibit burning the flag
to criticize the nation and allow burning a
dirty flag in reverence to the nation. This
is specifying content and taking into
account the motivation of the actor, which
the state is forbidden to do.
Texas v. Johnson (1989)
J. Brennan’s majority opinion continued . . .
 “Johnson burned an American flag in part of a political
demonstration that coincided with the convening of the
Republican Party and its renomination of Ronald
Reagan for President. . . . Texas claims that its interest
in preventing breaches of the peace justifies Johnson’s
conviction for flag desecration. However, no
disturbance of the peace actually occurred of threatened
to occur because of Johnson’s burning of the flag. . . .
We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that
this cherished emblem represents.”
Texas v. Johnson (1989)
 Justice Kennedy
concurred with
Brennan and wrote:
 "It is poignant but
fundamental that the
flag protects those who
hold it in contempt."
Texas v. Johnson (1989)
 C.J. Rehnquist dissented:
 “The flag does not present the views of
any political party and not simply
another "idea" or "point of view"
competing for recognition in the
marketplace of ideas. Millions and
millions of Americans regard it with an
almost mystical reverence regardless of
what sort of social, political, or
philosophical beliefs they may have.”
 “The government may conscript men
into the Armed Forces where they must
fight and perhaps die for the flag. . .”
Texas v. Johnson (1989): Aftermath
 In March 2000, the Senate rejected a proposed constitutional
amendment that would have given Congress power to prohibit
desecration of the U.S. flag. The 63-37 vote fell 4 votes short of
the 2/3 majority needed. The last time the Senate voted on an
amendment in 1995, they came up 3 votes short.
 The amendment would say "Congress shall have the power to
prohibit the physical desecration of the flag of the United
States.”
 The House has passed the amendment by a 2/3 majority 4 times
since the GOP took control of Congress in 1995. More than 3/4
of the states are prepared to ratify the amendment if the Senate
ever agrees. 49 state legislatures have passed resolutions urging
Congress to send them an amendment.
Conclusion
 Political Speech is highly protected both in schools and
in public.
 The 5-4 decision in Texas v. Johnson and resulting
legislative activity suggest that this case may be
overturned in the future.
 O’Connor and Rehnquist were both on the losing side
of that case, so their replacements would not make a
difference.
 Justice Stevens was also in dissent in that case, so his
replacement could potentially strengthen the majority . .
.