when constitutional law meets flash mobs – a...

CHAPTER TWO – 7364D

When Constitutional Law Meets Flash Mobs – A Practical Method to Inform

Juveniles about First Amendment Rights and Limitations

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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.

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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)

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FLASH MOBS: The Rights of Assembly and FREE Speech

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Advancing Civics Education High School Curriculum – Alternative Lessons

FRAMING QUESTION:

Are there limits to Constitutional Rights? What channels of power are most effective to create change?

MATERIALS NEEDED:

Attached handouts, including: copy of first amendment, case blurbs, flash mob scenario, and role cards.

OPENING ACTIVITY: (5 minutes)

1. Ask students to read the First Amendment silently, and to jot down some ideas about why the protections of individual rights exist. 2. Discuss briefly as a class why it was important for the framers to be able to assemble and speak their minds. (i.e. marketplace of ideas notion).

CLASS ACTIVITY: (40 minutes)

1. Ask volunteers to read aloud the flash mob scenario. 2. Break into four groups. Hand out the sheet describing the role of each group. (Legal team should circulate to clarify/answer any questions) 3. With a legal team member as moderator, each group should answer the questions within their group, taking notes about the best course of action and arguments to make.

CLOSING ACTIVITY: (5-10 minutes)

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. Pretend you are arguing for your group’s position, and try to explain the consequences of doing things another way. 2. As an entire class, debrief regarding the limits of free speech and assembly. 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, and avoid the “mob mentality?”

ENRICHMENT ACTIVITY: Extended class periods or homework:

-Ask students to write down five alternatives to violence/ways to make change that do not involve threats, intimidation, or physical harm to others. -Think about the early lesson “No Vehicles in the Park.” How do 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, how should Courts help apply the law in such a way that it covers just enough activity, and not too much?

PA CIVICS STANDARDS

High School P

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SELECTED CASES ON FREE SPEECH/ASSEMBLY:

Schenk v. United States: Mr. Schenk was the Secretary of the Socialist Party of America during World War I, and he wanted people to oppose the draft. He made pamphlets saying that the draft was involuntary servitude – (like slavery, which is prohibited by the 13th amendment). Schenk was convicted of violating the Espionage Act of 1917. Justice Oliver Wendell Holmes wrote a unanimous opinion of the Supreme Court as follows:

• The conviction was upheld. Encouraging insubordination can be a crime under the Constitution.

• “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

• Test is whether the words/circumstances create a clear and present danger” that they will bring about the harms laws want to prevent.

• Wartime allows greater restrictions on free speech than peacetime. Perhaps the ends justify the means?

Tinker v. Des Moines: Students wore armbands to school to protest the Vietnam War. The school district suspended the students until they agreed to remove the armbands. On appeal, the Supreme Court ruled:

• Students do not “shed their constitutional rights” at the schoolhouse gates. • 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.

Brandenburg v. Ohio: A Ku Klux Klan leader invited a TV station to a rally, where racial hatred was expressed. The KKK group called for “revengeance” and used ethnic slurs. The leader was convicted for violating an Ohio law against syndicalism. The Court reversed the Conviction:

• Government cannot punish abstractly advocating force or illegal acts. Speech is protected unless it encourages "imminent lawless action."

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. Do we allow only speech that we like?

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AMENDMENT 1 to the UNITED STATES CONSTITUTION:

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.

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BACKGROUND: Recently, at East Thrilladelphia High School, there has been a lot of tension and unrest. This year, the boundaries for the neighborhoods that send students to the school have changed. 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. The Student Council, led by a very responsible student named Terry Peaceful, wants a safer, more organized school environment. They believe in promoting learning. Terry and her followers want the new students to go somewhere else so that the building is not so full, the cafeteria is not so crowded, and the class size is smaller. The leader of the Nayborhood students, Pat Gimmespace, is angry that the friends from her/his neighborhood are not being welcomed into the school. Pat feels they have as much right to be there as anybody, and in fact, they live closer to the school than many of the kids on the student council who want Nayborhood kids to leave. Pat is an A student, and is sick of being treated like a second class citizen of the school. The principal of East Thrilladelphia is Angel Orderly. She allows students to gather at campus facilities for “authorized student groups” as long as the student group asks for permission in advance. School policy does not allow destroying property or physically hurting students, teachers, or administrators. A FLASH MOB ERUPTS: On Monday, 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. Pat and some friends made signs that say “WE BELONG” and “IMPROVE YOUR NAYBORHOOD.” One of Pat’s friends made a sign that says “THE THRILL IS OVER. MOVE OVER OR GET RUN OVER.” Other signs said “TREAT RIGHT OR GOODNIGHT.” The message about the gathering got out to everybody, and over 75 students from all different groups showed up on Friday. The chanting got louder, and turned to pushing. Pat was caught up in the excitement of leadership and shoved another student. Big fights broke out, and school property was destroyed. Some students were suspended, and others were arrested. 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. All of the activities were caught on the security camera.

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GROUP ROLES. Directions: Discuss the questions in your group. Take notes so you can explain to others why your group thinks the way it does.

GROUP ONE: Student Council Group, led by Terry Peaceful: Terry is sad that Friday got so crazy, but secretly she is glad that the school can now see what a bad influence the Nayborhood kids can be. Now that there is momentum against the new kids, she wants to organize an official campaign to get the Nayborhooders out of her high school.

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, and what can

Terry advocate to convince others that any negative impact can be minimized? GROUP TWO: Nayborhood Group, led by Pat Gimmespace: Pat didn’t mean for things to get violent, but they got out of hand. Now, Pat doesn’t mind because maybe somebody will pay attention to how badly the Nayborhood kids are being treated. Pat got suspended from school, but did not get arrested. Discuss as a group the following questions, 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, 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.)

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ROLES – CONT’. Remember to take notes so you can justify/explain your answers. GROUP THREE: School administrators and teachers, led by Angel Orderly: Angel needs to call for an assembly right away to help parents understand why the school environment turned violent.

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, 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, led by Judge Lawful: Judge Lawful wants to uphold the law in an unbiased fashion, but feels that people from his neighborhood are being discriminated against. S/he believes that more student involvement in political issues, not less, is important. The Judge has decided to let the lawyers argue both sides of the arrest cases so that s/he can make a fair decision.

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, Jamie, who was present Friday but stayed on the outer edge of the violent group. Jamie was pushing only because he had to keep from being crushed in the insanity. 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. What would you say to the unruly students who hurt others and destroyed property? What cases would you cite in your decision and why?

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

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BRANDENBURG v. OHIO

No. 492

SUPREME COURT OF THE UNITED STATES

395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430

February 27, 1969, Argued

June 9, 1969, Decided

PRIOR HISTORY: APPEAL FROM THE SUPREME COURT OF OHIO. DISPOSITION: Reversed. CASE SUMMARY: PROCEDURAL POSTURE: Petitioner appealed a judgment from the Supreme Court of Ohio, which, after finding that petitioner had not presented a constitutional issue for appeal, upheld petitioner's conviction under the state's criminal syndicalism statute, Ohio Rev. Code Ann. § 2923.13. 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. He was charged with violating Ohio's criminal syndicalism statute, Ohio Rev. Code Ann. § 2923.13, which made it unlawful, inter alia, to advocate crime or methods of terrorism or to voluntarily assembly with any group to teach or advocate doctrines of syndicalism. His conviction was upheld on appeal by the Supreme Court of Ohio. The United States Supreme Court granted review and concluded that, because Ohio's criminal syndicalism statute did not draw a distinction be-tween teaching the need for force or violence and preparing a group for violent action, the statute un-constitutionally intruded on the rights guaranteed by the U.S. Const. amends. I and XIV. As a result, the Court reversed petitioner's conviction because the statute upon which his conviction was based was unconstitutional. OUTCOME: The judgment finding that petitioner did not present a constitutional issue for appeal, there-by upholding petitioner's conviction under the state's criminal syndicalism statute, was reversed because the statute was declared unconstitutional. The court held that the statute impermissibly reached speech protected by the U.S. Const. amends. I and XIV and petitioner's conviction was reversed.

SUMMARY:

The defendant, a leader of a Ku Klux Klan group, spoke at a Klan rally at which a large wood-en cross was burned and some of the other per-sons present were carrying firearms. His remarks included such statements as: "Bury the niggers," "the niggers should be returned to Africa," and "send the Jews back to Israel." In an Ohio state court, he was convicted, under Ohio's criminal syn-dicalism statute, both for advocating the duty, ne-cessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of ac-complishing industrial or political reform, and for voluntarily assembling with any society, group, or assemblage of persons formed to teach or advo-cate the doctrines of criminal syndicalism. Although he challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the Federal Constitution, the in-termediate appellate court of Ohio affirmed his con-viction without opinion, and the Supreme Court of Ohio dismissed his appeal on the ground that no substantial constitutional question was presented.

On appeal, the United States Supreme Court reversed. In a per curiam opinion, expressing the unanimous views of the court and overruling Whit-ney v California (1927) 274 US 357, 71 L Ed 1095, 47 S Ct 641, 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, except where such advocacy was directed to inciting or producing im-minent lawless action and was likely to incite or produce such action, and that since the Ohio crimi-nal syndicalism statute, by its own words and as applied, purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, the statute violated the First and Four-teenth Amendments.

Black and Douglas, JJ., each concurring sepa-rately, joined the court's opinion, but expressed

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disagreement with the "clear and present danger" test which had been applied in an earlier decision cited by the court. LAWYERS' EDITION HEADNOTES: [***LEdHN1]

CONSTITUTIONAL LAW §925

free speech -- 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 vi-olation, except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [***LEdHN2]


free speech -- teaching of need for violence --

Headnote:[2]

For purposes of determining whether the con-stitutional guaranties of free speech and free press are violated, the mere abstract teaching of the mor-al 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 ac-tion, and a statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaran-teed by the First and Fourteenth Amendments and sweeps within its condemnation speech which the Federal Constitution has immunized from govern-mental control. [***LEdHN3]


free speech -- advocacy of criminal syndicalism --

Headnote:[3]

The First and Fourteenth Amendments' guaran-ties of free speech and free press preclude a con-viction for violation of a state criminal syndicalism statute which punishes persons who advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political re-form, or who publish or circulate or display any book or paper containing such advocacy, or who justify the commission of violent acts with intent to exemplify, spread, or advocate the propriety of the doctrines of criminal syndicalism, or who voluntarily

assemble with a group formed to teach or advocate the doctrines of criminal syndicalism, where (1) the first count of the indictment charged that the ac-cused, a Ku Klux Klan leader who spoke at a Klan meeting, did unlawfully by word of mouth advocate the necessity or propriety of crime, violence, or un-lawful methods of terrorism as a means of accom-plishing political reform; (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; (3) the trial judge's charge merely followed the lan-guage of the indictment; (4) neither the indictment nor the trial judge's instructions to the jury nor con-struction 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; and (5) the statute, by its own words and as applied, thus pur-ported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [***LEdHN4]



free speech -- right of assembly --

Headnote:[4]

The right of peaceable assembly is a right cog-nate to those of free speech and free press and is equally fundamental, and statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to immi-nent lawless action. SYLLABUS

Appellant, a Ku Klux Klan leader, was con-victed under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of crimi-nal syndicalism." Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distin-guished from incitement to imminent lawless action. Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others

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merely to advocate the described type of action, it falls within the condemnation of the First and Four-teenth Amendments. 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. Whitney v. California, 274 U.S. 357, overruled. COUNSEL: Allen Brown argued the cause for ap-pellant. With him on the briefs were Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman. Leonard Kirschner argued the cause for appellee. With him on the brief was Melvin G. Rueger. Paul W. Brown, Attorney General of Ohio, pro se, and Leo J. Conway, Assistant Attorney General, filed a brief for the Attorney General as amicus cu-riae. JUDGES: Warren, Black, Douglas, Harlan, Bren-nan, Stewart, White, Marshall OPINION BY: PER CURIAM OPINION

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syn-dicalism statute for "advocat[ing] . . . the duty, ne-cessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of ac-complishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advo-cate the doctrines of criminal syndicalism." Ohio Rev. Code Ann. § 2923.13. He was fined $ 1,000 and sentenced to one to 10 years' imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Con-stitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, "for the reason that no substantial constitu-tional question exists herein." It did not file an opin-ion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse.

The record shows that a man, identified at trial as the appellant, 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. With the coop-eration of the organizers, the reporter and a cam-eraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

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. The State also introduced into evidence several articles appearing in the film, in-cluding a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Ne-groes and, in one instance, of Jews. 1 Another sce-ne on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

"This is an organizers' meeting. We have had quite a few members here today which are -- we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.

"We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you."

1 The significant portions that could be understood were:

"How far is the nigger going to -- yeah."

"This is what we are going to do to the niggers."

"A dirty nigger."

"Send the Jews back to Israel."

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"Let's give them back to the dark gar-den."

"Save America."

"Let's go back to constitutional better-ment."

"Bury the niggers."

"We intend to do our part."

"Give us our state rights."

"Freedom for the whites."

"Nigger will have to fight for every inch he gets from now on."

The second film showed six hooded figures one of whom, later identified as the appellant, re-peated a speech very similar to that recorded on the first film. The reference to the possibility of "re-vengeance" was omitted, and one sentence was added: "Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel." Though some of the figures in the films carried weapons, the speaker did not.

[***LEdHR1] [1] [***LEdHR2] [2]The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legisla-tion in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal. Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" vio-lent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kan-sas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to for-bid or proscribe advocacy of the use of force or of law violation except where such advocacy is di-rected to inciting or producing imminent lawless action and is likely to incite or produce such action. 2 As we said in Noto v. United States, 367 U.S. 290, 297-298 (1961), "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." See also Herndon v. Lowry, 301 U.S.

242, 259-261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this dis-tinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amend-ments. It sweeps within its condemnation speech which our Constitution has immunized from gov-ernmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); DeJonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964).

2 It was on the theory that the Smith Act, 54 Stat. 670, 18 U. S. C. § 2385, embodied such a principle and that it had been applied only in conformity with it that this Court sus-tained the Act's constitutionality. Dennis v. United States, 341 U.S. 494 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U.S. 298, 320-324 (1957), in which the Court over-turned convictions for advocacy of the forci-ble overthrow of the Government under the Smith Act, because the trial judge's instruc-tions had allowed conviction for mere advo-cacy, unrelated to its tendency to produce forcible action.

[***LEdHR3] [3]Measured by this test, Ohio's Criminal Syndicalism Act cannot be sus-tained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of vio-lence "as a means of accomplishing industrial or political reform"; or who publish or circulate or dis-play any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndi-calism." Neither the indictment nor the trial judge's instructions to the jury in any way refined the stat-ute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to im-minent lawless action. 3

3 The first count of the indictment charged that appellant "did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of ter-rorism as a means of accomplishing political reform . . . ." The second count charged that

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appellant "did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism . . . ." The trial judge's charge merely followed the language of the indict-ment. No construction of the statute by the Ohio courts has brought it within constitu-tionally permissible limits. The Ohio Su-preme Court has considered the statute in only one previous case, State v. Kassay, 126 Ohio St. 177, 184 N. E. 521 (1932), where the constitutionality of the statute was sustained.

[***LEdHR4] [4]Accordingly, we are here con-fronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. 4Such a statute falls within the condemna-tion of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

4 Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 364:

"The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." See also United States v. Cruikshank, 92 U.S. 542, 552 (1876); Hague v. CIO, 307 U.S. 496, 513, 519 (1939); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461 (1958).

Reversed. CONCUR BY: BLACK; DOUGLAS CONCUR MR. JUSTICE BLACK, concurring.

I agree with the views expressed by MR. JUS-TICE 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. I join the Court's opinion, which,

as I understand it, simply cites Dennis v. United States, 341 U.S. 494 (1951), but does not indicate any agreement on the Court's part with the "clear and present danger" doctrine on which Dennis pur-ported to rely. MR. JUSTICE DOUGLAS, concurring.

While I join the opinion of the Court, I desire to enter a caveat.

The "clear and present danger" test was adum-brated by Mr. Justice Holmes in a case arising dur-ing World War I -- a war "declared" by the Con-gress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscrip-tion, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. 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 pre-sent danger that they will bring about the substan-tive evils that Congress has a right to prevent. It is a question of proximity and degree."

Frohwerk v. United States, 249 U.S. 204, also authored by Mr. Justice Holmes, involved prosecu-tion and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing secu-rity "by words of persuasion." Id., at 206. 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." Id., at 209.

Debs v. United States, 249 U.S. 211, was the third of the trilogy of the 1918 Term. 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." Id., at 215.

"If that was intended and if, in all the circum-stances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief." Ibid.

In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United

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States, 250 U.S. 616, was one instance. Mr. Jus-tice Holmes, with whom Mr. Justice Brandeis con-curred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out:

"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. Congress cer-tainly cannot forbid all effort to change the mind of the country." Id., at 628.

Another instance was Schaefer v. United States, 251 U.S. 466, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239, in which again Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.

Those, then, were the World War I cases that put the gloss of "clear and present danger" on the First Amendment. Whether the war power -- the greatest leveler of them all -- is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, 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 legisla-tion and new institutions" by argument and dis-course ( Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

The Court quite properly overrules Whitney v. California, 274 U.S. 357, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous.

Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652, 673:

"Every idea is an incitement. 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. The only differ-ence between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the

redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

We have never been faithful to the philosophy of that dissent.

The Court in Herndon v. Lowry, 301 U.S. 242, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id., at 259-261. And see Hartzel v. United States, 322 U.S. 680. In Bridges v. California, 314 U.S. 252, 261-263, we approved the "clear and present danger" test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, we opened wide the door, distorting the "clear and present danger" test beyond recogni-tion. 1

1 See McKay, The Preference For Free-dom, 34 N. Y. U. L. Rev. 1182, 1203-1212 (1959).

In that case the prosecution dubbed an agree-ment to teach the Marxist creed a "conspiracy." The case was submitted to a jury on a charge that the jury could not convict unless it found that the de-fendants "intended to overthrow the Government 'as speedily as circumstances would permit.'" Id., at 509-511. The Court sustained convictions under that charge, construing it to mean a determination of "'whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. '" 2 Id., at 510, quoting from United States v. Dennis, 183 F.2d 201, 212.

2 See Feiner v. New York, 340 U.S. 315, where a speaker was arrested for arousing an audience when the only "clear and pre-sent danger" was that the hecklers in the au-dience would break up the meeting.

Out of the "clear and present danger" test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318. But an "active" member, who has a guilty knowledge and intent of the aim to overthrow the Government by violence, Noto v. United States, 367 U.S. 290, may be prosecuted. Scales v. United States, 367 U.S. 203, 228. And the

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power to investigate, backed by the powerful sanc-tion of contempt, includes the power to determine which of the two categories fits the particular wit-ness. Barenblatt v. United States, 360 U.S. 109, 130. And so the investigator roams at will through all of the beliefs of the witness, ransacking his con-science and his innermost thoughts.

Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the "not improbable" test, 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the "clear and present danger" test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes' creation of the "clear and present danger" test, he said, "I cannot help thinking that for once Homer nodded."

My own view is quite different. I see no place in the regime of the First Amendment for any "clear and present danger" test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.

When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, 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. Second, 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.

Action is often a method of expression and within the protection of the First Amendment.

Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted?

Suppose one rips his own Bible to shreds to celebrate his departure from one "faith" and his embrace of atheism. May he be indicted?

Last Term the Court held in United States v. O'Brien, 391 U.S. 367, 382, that a registrant under Selective Service who burned his draft card in pro-test of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying:

"The issuance of certificates indicating the registra-tion and eligibility classification of individuals is a legitimate and substantial administrative aid in the

functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration." 391 U.S., at 377-378.

But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment.

The act of praying often involves body posture and movement as well as utterances. It is none-theless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is "free speech plus." See Bakery Drivers Local v. Wohl, 315 U.S. 769, 775 (DOUGLAS, J., concur-ring); Giboney v. Empire Storage Co., 336 U.S. 490, 501; Hughes v. Superior Court, 339 U.S. 460, 465; Labor Board v. Fruit Packers, 377 U.S. 58, 77 (BLACK, J., concurring); and id., at 93 (HAR-LAN, J., dissenting); Cox v. Louisiana, 379 U.S. 559, 578 (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U.S. 308, 326 (DOUGLAS, J., concurring). That means that it can be regulated when it comes to the "plus" or "action "side of the protest. It can be regulated as to the number of pickets and the place and hours (see Cox v. Loui-siana, supra), because traffic and other community problems would otherwise suffer.

But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card.

One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an "ac-tive" 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. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of pri-vacy made by investigating committees were noto-riously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily con-cerned with one's thoughts, ideas, beliefs, and con-victions. They were the most blatant violations of the First Amendment we have ever known.

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The line between what is permissible and not subject to control and what may be made imper-missible and subject to regulation is the line be-tween ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536-537 (DOUGLAS, J., concurring). They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and con-science. 3

3 See MR. JUSTICE BLACK, dissenting, in Communications Assn. v. Douds, 339 U.S. 382, 446, 449 et seq.

REFERENCES 16 Am Jur 2d, Constitutional Law 341 et seq. US L Ed Digest, Constitutional Law 927 ALR Digests, Constitutional Law 792(1) L Ed Index to Anno, Constitutional Law ALR Quick Index, Freedom of Speech and Press Annotation References: The Supreme Court and the right of free speech and press. 93 L Ed 1151, 2 L Ed 2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976. Validity of legislation directed against political, so-cial, or industrial propaganda deemed to be of a dangerous tendency. 1 ALR 336, 20 ALR 1535, 73 ALR 1494.

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

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SCHENCK v. UNITED STATES; BAER v. UNITED STATES

Nos. 437, 438


249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470

Argued January 9, 10, 1919 March 3, 1919

PRIOR HISTORY: ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA CASE SUMMARY: PROCEDURAL POSTURE: Defendants were con-victed of conspiracy and other crimes under the Espionage Act of June 15, 1917, 40 Stat. 217, 219, for distributing leaflets that opposed the military draft. Defendants appealed their convictions from the District Court of the United States for the East-ern 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. OVERVIEW: While the United States was at war, defendants circulated leaflets that urged men to refuse to submit to the draft into military service. For attempting to obstruct military recruitment, defend-ants were convicted of crimes pursuant to the Es-pionage Act, 40 Stat. 217, 219. Defendants con-tended that the distribution of the leaflets was activ-ity protected by the First Amendment. The Court admitted that in many places and in ordinary times, the distribution of the leaflets would have been within defendants' constitutional rights. The Court explained, however, that the character of protected speech depended upon the circumstances in which it was expressed. For example, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a pan-ic. 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. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of de-fendants did not violate the First Amendment.

OUTCOME: The Court affirmed the judgments that upheld defendants' convictions. LAWYERS' EDITION HEADNOTES:

Criminal law -- self-crimination -- search and seizure. --

Headnote:

Documentary evidence is not rendered inad-missible against defendants in a criminal case merely because it was obtained upon a search warrant, valid so far as appears.

[For other cases, see Criminal Law, III. b, 2; Search and Seizure, in Digest Sup. Ct. 1908.]

Criminal law -- self-crimination -- evidence pro-ceeding directly from defendant. --

Headnote:

The protection against self-crimination afforded by U. S. Const., 5th Amend., does not exclude in all cases evidence which directly proceeds from the defendant in a criminal proceeding.

[For other cases, see Criminal Law, III. b, 2; Evidence, VIII. in Digest Sup. Ct. 1908.]

Conspiracy -- obstructing recruiting and enlist-ment service. --

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, 1917 (40 Stat. at L. 76, chap. 15. Comp. Stat. 1918, 2044a), be asserted, although in form confining itself to peaceful measures, such as a petition for the repeal of the act, falls within the condemnation of the provisions of the Espionage Act of June 15, 1917 (40 Stat. at L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3, forbidding the causing or attempting to cause in-subordination in the military and naval forces of the

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United States, or the obstructing of the recruiting or enlistment service of the United States when at war.

[For other cases, see Conspiracy, II. in Digest Sup. Ct. 1908.]

Constitutional law -- freedom of speech and press -- obstructing selective draft -- Espionage Act. --

Headnote:

The constitutional freedom of speech and press was not infringed by the provisions of the Espio-nage Act of June 15, 1917 (40 Stat. at L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3, under which a conviction may be had for a conspiracy which tends to influence persons subject to the Selective Draft Act of May 18, 1917 (40 Stat. at L. 76, chap. 15, Comp. Stat. 1918, 2044a), to obstruct such draft, even though in many places and in ordinary times defendants, in saying all that was said in the circu-lar, would have been within their constitutional rights.

[For other cases, see Constitutional Law, IV. d, in Digest Sup. Ct. 1908.]

Conspiracy -- to obstruct selective draft -- fail-ure to accomplish illegal object. --

Headnote:

A conspiracy to obstruct the recruiting or en-listment service of the United States when at war by the distribution of a circular tending to incite such obstruction may be made a crime, punishable as such, as is done by the provisions of the Espionage Act of June 15, 1917 (40 Stat. at L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3, irrespective of the success or failure of such conspiracy.

[For other cases, see Conspiracy, II. in Digest Sup. Ct. 1908.] SYLLABUS

Evidence held sufficient to connect the defend-ants with the mailing of printed circulars in pursu-ance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917. P. 49.

Incriminating documents seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendments, in a criminal prose-cution against the general secretary of a Socialist party, who had charge of the office. P. 50.

Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to pro-hibition 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. The character of every act depends upon the circum-stances in which it is done. P. 51.

A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars is within the power of Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 52.

The word "recruiting" as used in the Espionage Act, § 3, means the gaining of fresh supplies of men for the military forces, as well by draft as otherwise. P. 52.

The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the prosecution of offenses under the former. P. 53.

Affirmed.

THE case is stated in the opinion. COUNSEL: Mr. Henry John Nelson and Mr. Henry J. Gibbons for plaintiffs in error. Mr. John Lord O'Brian, Special Assistant to the At-torney General, with whom Mr. Alfred Bettman, Special Assistant to the Attorney General, was on the brief, for the United States. JUDGES: White, McKenna, Holmes, Day, Van De-vanter, Pitney, McReynolds, Brandeis, Clarke OPINION BY: HOLMES OPINION

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit,

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that the defendants wilfully conspired to have print-ed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and ob-struction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, 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. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.

It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. Ac-cording to the testimony Schenck said he was gen-eral secretary of the Socialist party and had charge of the Socialist headquarters from which the docu-ments were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On August 20 the general secretary's re-port said "Obtained new leaflets from printer and started work addressing envelopes" &c.; and there was a resolve that Comrade Schenck be allowed $ 125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand print-ed. 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. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. 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. 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.

It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The con-trary is established. Adams v. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383, 395, 396. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the docu-ments technically were not even in the defendants' possession. See Johnson v. United States, 228 U.S. 457. Notwithstanding some protest in argu-ment the notion that evidence even directly pro-ceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253.

The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act and that a conscript is little better than a [*51] convict. In impas-sioned 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. It said "Do not submit to intimidation," but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." 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," and went on "If you do not assert and support your rights, 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." It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an in-famous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up "You must do your share to maintain, support and uphold the rights of the people of this country." Of course the documents would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influ-ence them to obstruct the carrying of it out. The

145

defendants do not deny that the jury might find against them on this point.

But it is said, suppose that that was the ten-dency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted re-spectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colora-do, 205 U.S. 454, 462. We admit that in many places and in ordinary times the defendants in say-ing all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against ut-tering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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 pre-sent danger that they will bring about the substan-tive evils that Congress has a right to prevent. It is a question of proximity and degree. 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in § 4 punishes conspiracies to obstruct as well as actu-al obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for say-ing that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.

It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The words are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accom-plished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlist-ment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. Stats., § 13.

Judgments affirmed.

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

147

TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL.

No. 21


393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731

November 12, 1968, Argued February 24, 1969, Decided

PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. DISPOSITION: 383 F.2d 988, reversed and remanded. CASE SUMMARY: PROCEDURAL POSTURE: On writ of certiorari to the United States Court of Appeals for the Fifth Circuit, petitioner high school students challenged the judgment affirming the district court's dismissal of their 42 U.S.C.S. § 1983 civil rights action, up-holding the constitutionality of respondent school officials' suspension of petitioners for wearing black armbands to school in protest of the Vietnam War. OVERVIEW: Respondent school officials sus-pended petitioner students from public high school because they wore black armbands to school in protest of the Vietnam War. Petitioners sued re-spondents under 42 U.S.C.S. § 1983. The trial court dismissed the complaint, upholding the constitu-tionality of respondents' action on the ground that it was reasonable in order to prevent the disturbance of school discipline. The circuit court affirmed. The Supreme Court reversed because the wearing of armbands was entirely divorced from actually or potentially disruptive conduct by those that partici-pated in it. Petitioners' conduct was closely akin to pure speech which was entitled to comprehensive protection under the First Amendment, absent facts that might reasonably have led school officials to forecast substantial disruption of or material inter-ference with school activities. OUTCOME: The Court reversed the dismissal of the high school students' civil rights complaint against school officials.

SUMMARY:

As part of a plan formulated by a group of adults and students in Des Moines, Iowa, the peti-tioners, two public high school students and one junior high school student, wore black armbands to their schools to publicize their objections to the hos-tilities in Vietnam and their support for a truce, de-spite 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, and if he refused would be suspended until he re-turned without the armband. As a result the peti-tioners were all sent home and suspended from school until they would come back without their armbands. The petitioners, through their fathers, then filed a complaint in the United States District Court for the Southern District of Iowa, praying for an injunction restraining the school authorities from disciplining the petitioners, and seeking nominal damages. After an evidentiary hearing, the District Court dismissed the complaint, upholding the con-stitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. (258 F Supp 971.) On appeal, the United States Court of Appeals for the Eighth Circuit affirmed without opinion. (383 F2d 988.)

On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Fortas, J., expressing the view of seven members of the court, it was held that the wearing of armbands in the cir-cumstances of the case was entirely divorced from actually or potentially disruptive conduct by those participating in it, and as such was closely akin to "pure speech" which is entitled to comprehensive protection under the First Amendment, and that the school regulation prohibiting students from thus

149

wearing the armbands violated the students' rights of free speech under the First Amendment, where there was no evidence that the authorities had rea-son 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, 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, and that the particular symbol of black armbands was singled out for pro-hibition.

Stewart, J., concurred in the judgment and most of the court's opinion, but said that he could not share the court's uncritical assumption that, school discipline aside, the First Amendment rights of chil-dren are coextensive with those of adults, adhering to his view that a state may permissibly determine that, at least in some precisely delineated areas, 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, J., concurred, noting that the court con-tinues to recognize a distinction between com-municating by words and communicating by acts or conduct which sufficiently impinge on some valid state interests, but that he did not subscribe to eve-rything said about free speech in a case relied upon by the court in its opinion.

Black, J., dissented on the grounds that (1) the court arrogated to itself, rather than to the state's elected school officials, the decision as to which school disciplinary regulations are "reasonable"; (2) the case, wholly without constitutional reasons, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest students; and (3) the court should have accorded the Iowa educational institu-tions the right to determine for themselves what free expression and no more should be allowed, 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 de-sired to exist in its public education institutions."

Harlan, J., dissented, saying that he would, in cases like the instant one, cast upon those com-plaining the burden of showing that a particular school measure was motivated by other than legit-imate school concerns, and that he could find noth-ing in the record which impugned the good faith of the defendant school authorities in promulgating the armband regulation.

LAWYERS' EDITION HEADNOTES: [***LEdHN1]

CONSTITUTIONAL LAW §925.7

freedom of speech -- students' wearing of arm-bands --

Headnote:[1]

Public school students' wearing, in violation of a school regulation, 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, and as such is closely akin to "pure speech" which is entitled to comprehensive protection under the First Amendment. [***LEdHN2]


freedom of speech -- teachers and students --

Headnote:[2]

First Amendment rights of freedom of speech expression, applied in light of the special character-istics of the school environment, are available to teachers and students, and neither students nor teachers shed such rights at the schoolhouse gate. [***LEdHN3]


SCHOOLS §1

conditions on attendance -- constitutional guaranties --

Headnote:[3A][3B]

A state may not impose and enforce any condi-tions that it chooses upon attendance at public in-stitutions of learning, however violative they may be of fundamental constitutional guaranties. [***LEdHN4]



Headnote:[4]

The problem presented by public school stu-dents' wearing, in violation of a school regulation, of

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black armbands during school hours as a symbolic act to publicize their objections to the hostilities in Vietnam and their support for a truce, does not concern aggressive, disruptive action or even group demonstrations, but involves direct, primary First Amendment rights akin to "pure speech." [***LEdHN5]



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 Vi-etnam and their support for a truce, is not enough to overcome the students' right to freedom of expres-sion; but the Federal Constitution requires that the risk be taken that any departure from absolute regimentation may cause trouble, that any variation from the majority's opinion may inspire fear, and that any word spoken in class, in the lunchroom, or on the campus, that deviates from the views of an-other person, may start an argument or cause a disturbance. [***LEdHN6]

CONSTITUTIOINAL LAW §928

freedom of speech -- school prohibition --

Headnote:[6]

In order for the state in the person of school of-ficials to justify prohibition of a particular expression of opinion under the First Amendment, it must be able to show that its action was caused by some-thing more than a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint. [***LEdHN7]


freedom of speech -- school prohibition --

Headnote:[7]

A prohibition by the state in the person of school officials, of a particular expression of opin-ion, cannot be sustained under the First Amend-ment, 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. [***LEdHN8]


freedom of speech -- school regulation -- stu-dents' 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, violates the students' constitutional rights to free speech under the First Amendment, 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, but on the contrary the action of the school authorities appeared to have been based upon an urgent wish to avoid the con-troversy which might result from the expression, even by the silent symbol of armbands, of opposi-tion to the United States' involvement in Vietnam, 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. [***LEdHN9]

SCHOOLS §1

authority over students --

Headnote:[9]

State-operated schools may not be enclaves of totalitarianism, and school officials do not possess absolute authority over their students. [***LEdHN10]


SCHOOLS §1

students' rights --

Headnote:[10]

Students in state-operated schools, as well as out of school, are "persons" under the Federal Con-stitution, and are possessed of fundamental rights

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which the state must respect, just as they them-selves must respect their obligations to the state. [***LEdHN11]


freedom of speech -- 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, and may not be confined to the expression of those senti-ments that are officially approved. [***LEdHN12]


freedom of speech -- state school students --

Headnote:[12]

In the absence of a specific showing of consti-tutionally valid reasons to regulate their speech, students in state-operated schools are entitled to freedom of expression of their views. [***LEdHN13]


freedom of speech -- suppression -- school offi-cials --

Headnote:[13]

Under the First Amendment, state school offi-cials cannot suppress expression of feelings with which they do not wish to contend. [***LEdHN14]


SCHOOLS §1

freedoms --

Headnote:[14]

The vigilant protection of constitutional free-doms is nowhere more vital than in the community of American schools. [***LEdHN15]


freedom of speech -- students --

Headnote:[15]

The principle that the vigilant protection of con-stitutional 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, but extends to such activities as personal intercommunication among the students. [***LEdHN16]



Headnote:[16]

A student's constitutional rights of freedom of speech do not embrace merely the classroom hours, but when he is in the cafeteria, or on the playing field, or on the campus during the author-ized hours, he may express opinions, even on con-troversial subjects, if he does so without materially and substantially interfering with appropriate disci-pline in the operation of the school and without col-liding with the rights of others. [***LEdHN17]



Headnote:[17]

Conduct by a student, in class or out of it, which for any reason--whether it stems from time, place, or type of behavior--materially disrupts classwork or involves substantial disorder or invasion of the rights of others, is not immunized by the constitu-tional guaranty of freedom of speech. [***LEdHN18]


freedom of speech --

Headnote:[18]

Under the Federal Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. [***LEdHN19]


freedom of speech --

Headnote:[19]

Freedom of expression does not truly exist if the right can be exercised only in an area that a

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benevolent government has provided as a safe ha-ven for crackpots. [***LEdHN20]


free speech -- regulation --

Headnote:[20]

The First Amendment to the Federal Constitu-tion permits reasonable regulation of speech-connected activities in carefully restricted circumstances. [***LEdHN21]


free speech -- 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, or to su-pervised and ordained discussion in a school classroom. [***LEdHN22]


freedom of speech -- school regulation --

Headnote:[22]

If a regulation adopted by school officials for-bids discussion of the Vietnam conflict, or the ex-pression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it violates constitutional rights of students, at least if it cannot be justified by showing that the students' activities would material-ly and substantially disrupt the work and discipline of the school. SYLLABUS

Petitioners, three public school pupils in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Govern-ment's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands. The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the con-duct of school activities. The Court of Appeals,

sitting en banc, affirmed by an equally divided court. Held:

1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protec-tion of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. Pp. 505-506.

2. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environ-ment. Pp. 506-507.

3. 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, is not permissible under the First and Fourteenth Amendments. Pp. 507-514. COUNSEL: Dan L. Johnston argued the cause for petitioners. With him on the brief were Melvin L. Wulf and David N. Ellenhorn. Allan A. Herrick argued the cause for respondents. With him on the brief were Herschel G. Langdon and David W. Belin. Charles Morgan, Jr., filed a brief for the United States National Student Association, as amicus cu-riae, urging reversal. JUDGES: Warren, Black, Douglas, Harlan, Bren-nan, Stewart, White, Fortas, Marshall OPINION BY: FORTAS OPINION

MR. JUSTICE FORTAS delivered the opinion of the Court.

Petitioner John F. Tinker, 15 years old, and pe-titioner Christopher Eckhardt, 16 years old, attend-ed high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and stu-dents in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands dur-ing the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their par-

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ents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools be-came aware of the plan to wear armbands. On De-cember 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired -- that is, until after New Year's Day.

This complaint was filed in the United States District Court by petitioners, through their fathers, under § 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respond-ent school officials and the respondent members of the board of directors of the school district from dis-ciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld the constitutionality of the school authorities' action on the ground that it was reasonable in order to pre-vent disturbance of school discipline. 258 F.Supp. 971 (1966). The court referred to but expressly de-clined 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 sub-stantially interfere[s] with the requirements of ap-propriate discipline in the operation of the school." Burnside v. Byars, 363 F.2d 744, 749 (1966). 1

1 In Burnside, the Fifth Circuit ordered that high school authorities be enjoined from en-forcing a regulation forbidding students to wear "freedom buttons." It is instructive that in Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (1966), the same panel on the same day reached the opposite result on different facts. 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 disturb-ance.

On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The

court was equally divided, and the District Court's decision was accordingly affirmed, without opinion. 383 F.2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968).

I. [***LEdHR1] [1]The District Court recognized that the wearing of an armband for the purpose of ex-pressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931).Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (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. It was closely akin to "pure speech" [*506] which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966). [***LEdHR2] [2] [***LEdHR3A] [3A]First Amend-ment rights, applied in light of the special charac-teristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitu-tional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmis-takable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally inter-fere with the liberty of teacher, student, and parent. 2 See also Pierce v. Society of Sisters, 268 U.S. 510 (1925); West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333 U.S. 203 (1948); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); En-gel v. Vitale, 370 U.S. 421 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Ep-person v. Arkansas, ante, p. 97 (1968).

[***LEdHR3B] [3B]

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2 Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934), is sometimes cited for the broad proposition that the State may at-tach conditions to attendance at a state uni-versity that require individuals to violate their religious convictions. The case involved dismissal of members of a religious denomi-nation from a land grant college for refusal to participate in military training. Narrowly viewed, the case turns upon the Court's con-clusion that merely requiring a student to participate in school training in military "sci-ence" could not conflict with his constitution-ally protected freedom of conscience. The decision cannot be taken as establishing that the State may impose and enforce any con-ditions that it chooses upon attendance at public institutions of learning, however viola-tive they may be of fundamental constitu-tional guarantees. See, e. g., West Virginia v. Barnette, 319 U.S. 624 (1943); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C. A. 5th Cir. 1961); Knight v. State Board of Education, 200 F.Supp. 174 (D. C. M. D. Tenn. 1961); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D. C. M. D. Ala. 1967). See also Note, Un-constitutional Conditions, 73 Harv. L. Rev. 1595 (1960); Note, Academic Freedom, 81 Harv. L. Rev. 1045 (1968).

In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said:

"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous pro-tection of Constitutional freedoms of the individual, 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." 319 U.S., at 637. On the other hand, the Court has repeatedly em-phasized the need for affirming the comprehensive authority of the States and of school officials, con-sistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.

See Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.

II. [***LEdHR4] [4]The problem posed by the pre-sent case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or de-portment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to "pure speech."

The school officials banned and sought to pun-ish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or dis-turbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of colli-sion with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five stu-dents were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

[***LEdHR5] [5]The District Court concluded that the action of the school authorities was rea-sonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from ab-solute regimentation may cause trouble. Any vari-ation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturb-ance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence

155

and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. [***LEdHR6] [6] [***LEdHR7] [7]In order for the State in the person of school officials to justify pro-hibition 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 ac-company an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and sub-stantially interfere with the requirements of appro-priate discipline in the operation of the school," the prohibition cannot be sustained. Burnside v. Byars, supra, at 749.

In the present case, the District Court made no such finding, 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. Even an official memorandum prepared after the suspension that listed the rea-sons for the ban on wearing the armbands made no reference

[***LEdHR8A] [8A] to the anticipation of such disruption. 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. Some of his friends are still in school and it was felt that if any kind of a demonstration existed, it might evolve into something which would be diffi-cult to control."

"Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands pre-vailed."

Moreover, the testimony of school au-thorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands; the regulation was directed against "the principle of the demon-stration" itself. School authorities simply felt that "the schools are no place for demonstra-tions," and if the students "didn't like the way our elected officials were handling things, it should be handled with the ballot box and not in the halls of our public schools."

On the contrary, the action of the school author-ities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam. 4 It is revealing, in this re-spect, that the meeting at which the school princi-pals 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. 5)

4 The District Court found that the school authorities, in prohibiting black armbands, were influenced by the fact that "the Viet Nam war and the involvement of the United States therein has been the subject of a ma-jor controversy for some time. When the arm band regulation involved herein was promulgated, debate over the Viet Nam war had become vehement in many localities. A protest march against the war had been re-cently held in Washington, D. C. A wave of draft card burning incidents protesting the war had swept the country. At that time two highly publicized draft card burning cases were pending in this Court. Both individuals supporting the war and those opposing it were quite vocal in expressing their views." 258 F.Supp., at 972-973. 5 After the principals' meeting, 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. They reported that "we felt that it was a very friendly conversation, although we did not feel that we had convinced the student that our decision was a just one."

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. In-stead, a particular symbol -- black armbands worn to exhibit opposition to this Nation's involvement in Vietnam -- was singled out for prohibition. Clearly, the prohibition of expression of one particular opin-ion, at least without evidence that it is necessary to avoid material and substantial interference with

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schoolwork or discipline, is not constitutionally permissible.

[***LEdHR9] [9] [***LEdHR10] [10] [***LEdHR11] [11] [***LEdHR12] [12] [***LEdHR13] [13]In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be con-fined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend." Burnside v. Byars, supra, at 749.

In Meyer v. Nebraska, supra, at 402, Mr. Jus-tice McReynolds expressed this Nation's repudia-tion of the principle that a State might so conduct its schools as to "foster a homogeneous people." He said:

"In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent educa-tion and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the rela-tion between individual and State were wholly dif-ferent from those upon which our institutions rest; 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." [***LEdHR14] [14]This principle has been re-peated by this Court on numerous occasions during the intervening years. In Keyishian v. Board of Regents, 385 U.S. 589, 603, MR. JUSTICE BRENNAN, speaking for the Court, said:

"'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of Amer-

ican schools.' Shelton v. Tucker, [364 U.S. 479,] at 487. The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust ex-change of ideas which discovers truth 'out of a mul-titude of tongues, [rather] than through any kind of authoritative selection.'" [***LEdHR15] [15] [***LEdHR16] [16] [***LEdHR17] [17]The principle of these cases is not confined to the supervised and ordained dis-cussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunica-tion among the students. 6 This is not only an inevi-table part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without "materially and sub-stantially interfer[ing] with the requirements of ap-propriate discipline in the operation of the school" and without colliding with the rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts classwork or in-volves substantial disorder or invasion of the rights of others is, of course, not immunized by the con-stitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (C. A. 5th Cir. 1966).

6 In Hammond v. South Carolina State College, 272 F.Supp. 947 (D. C. S. C. 1967), District Judge Hemphill had before him a case involving a meeting on campus of 300 students to express their views on school practices. He pointed out that a school is not like a hospital or a jail enclosure. Cf. Cox v. Louisiana, 379 U.S. 536 (1965); Adderley v. Florida, 385 U.S. 39 (1966). It is a public place, 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. Cf. Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966).

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[***LEdHR18] [18] [***LEdHR19] [19] [***LEdHR20] [20] [***LEdHR21] [21]Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. 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. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in careful-ly restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pam-phlet, or to supervised and ordained discussion in a school classroom. [***LEdHR8B] [8B] [***LEdHR22] [22]If a regula-tion were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would material-ly and substantially disrupt the work and discipline of the school. Cf. Hammond v. South Carolina State College, 272 F.Supp. 947 (D. C. S. C. 1967) (orderly protest meeting on state college campus); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D. C. M. D. Ala. 1967) (expulsion of student editor of college newspaper). In the cir-cumstances of the present case, the prohibition of the silent, passive "witness of the armbands," as one of the children called it, is no less offensive to the Constitution's guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disrup-tion of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disap-proval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In

the circumstances, our Constitution does not permit officials of the State to deny their form of expres-sion.

We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and re-mand for further proceedings consistent with this opinion.

Reversed and remanded. CONCUR BY: STEWART; WHITE CONCUR MR. JUSTICE STEWART, concurring.

Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I cannot share the Court's uncritical assump-tion that, school discipline aside, the First Amend-ment rights of children are co-extensive with those of adults. Indeed, I had thought the Court decided otherwise just last Term in Ginsberg v. New York, 390 U.S. 629. I continue to hold the view I ex-pressed in that case: "[A] State may permissibly determine that, at least in some precisely delineat-ed areas, a child -- like someone in a captive audi-ence -- is not possessed of that full capacity for in-dividual choice which is the presupposition of First Amendment guarantees." Id., at 649-650 (concur-ring in result). Cf. Prince v. Massachusetts, 321 U.S. 158.

MR. JUSTICE WHITE, concurring.

While I join the Court's opinion, I deem it ap-propriate to note, first, 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; and, second, that I do not subscribe to everything the Court of Appeals said about free speech in its opinion in Burnside v. Byars, 363 F.2d 744, 748 (C. A. 5th Cir. 1966), a case relied upon by the Court in the matter now before us. DISSENT BY: BLACK; HARLAN DISSENT MR. JUSTICE BLACK, dissenting.

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 . . ." in the United States is

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in ultimate effect transferred to the Supreme Court. 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." Here the constitutional right to "political expression" as-serted 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. Ordered to refrain from wearing the armbands in school by the elected school offi-cials and the teachers vested with state authority to do so, apparently only seven out of the school sys-tem's 18,000 pupils deliberately refused to obey the order. One defying pupil was Paul Tinker, 8 years old, who was in the second grade; another, Hope Tinker, was 11 years old and in the fifth grade; a third member of the Tinker family was 13, in the eighth grade; and a fourth member of the same family was John Tinker, 15 years old, an 11th grade high school pupil. Their father, a Methodist minister without a church, is paid a salary by the American Friends Service Committee. Another student who defied the school order and insisted on wearing an armband in school was Christopher Eckhardt, an 11th grade pupil and a petitioner in this case. His mother is an official in the Women's International League for Peace and Freedom.

1 The petition for certiorari here presented this single question:

"Whether the First and Fourteenth Amendments permit officials of state sup-ported public schools to prohibit students from wearing symbols of political views with-in school premises where the symbols are not disruptive of school discipline or deco-rum."

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. First, the Court concludes that the wearing of armbands is "symbolic speech" which is "akin to 'pure speech'" and therefore pro-tected by the First and Fourteenth Amendments. Secondly, 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. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the deci-

sion as to which school disciplinary regulations are "reasonable."

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, cf., e. g., Giboney v. Em-pire Storage & Ice Co., 336 U.S. 490 (1949), 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 -- "sym-bolic" or "pure" -- and whether the courts will allo-cate to themselves the function of deciding how the pupils' school day will be spent. While I have al-ways 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, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. This Court has already rejected such a notion. In Cox v. Louisiana, 379 U.S. 536, 554 (1965), for example, the Court clearly stated that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to ex-press may address a group at any public place and at any time."

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked" chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration." Even a casual reading of the rec-ord shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker "self-conscious" in attending school with his armband. 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, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders

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of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolution-ary era of permissiveness in this country fostered by the judiciary. The next logical step, it appears to me, would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting, or from being elected members of the boards of education. 2

2 The following Associated Press article appeared in the Washington Evening Star, January 11, 1969, p. A-2, col. 1:

"BELLINGHAM, Mass. (AP) -- Todd R. Hennessy, 16, has filed nominating papers to run for town park commissioner in the March election.

"'I can see nothing illegal in the youth's seeking the elective office,' said Lee Ambler, the town counsel. 'But I can't overlook the possibility that if he is elected any legal con-tract entered into by the park commissioner would be void because he is a juvenile.'

"Todd is a junior in Mount St. Charles Academy, where he has a top scholastic record."

The United States District Court refused to hold that the state school order violated the First and Fourteenth Amendments. 258 F.Supp. 971. Holding that the protest was akin to speech, which is protected by the First and Fourteenth Amend-ments, that court held that the school order was "reasonable" and hence constitutional. There was at one time a line of cases holding "reasonable-ness" as the court saw it to be the test of a "due process" violation. Two cases upon which the Court today heavily relies for striking down this school order used this test of reasonableness, Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923). The opinions in both cases were written by Mr. Justice McReyn-olds; Mr. Justice Holmes, who opposed this rea-sonableness test, dissented from the holdings as did Mr. Justice Sutherland. This constitutional test of reasonableness prevailed in this Court for a season. It was this test that brought on President Franklin Roosevelt's well-known Court fight. His proposed legislation did not pass, but the fight left the "reasonableness" constitutional test dead on the battlefield, so much so that this Court in Ferguson v. Skrupa, 372 U.S. 726, 729, 730, after a thorough review of the old cases, 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, that is, unwise or incompatible with some particular economic or so-cial philosophy.

. . . .

"The doctrine that prevailed in Lochner, Cop-page, Adkins, Burns, and like cases -- that due process authorizes courts to hold laws unconstitu-tional when they believe the legislature has acted unwisely -- has long since been discarded."

The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they "shock the con-science" or that they are "unreasonable," "arbitrary," "irrational," "contrary to fundamental 'decency,'" or some other such flexible term without precise boundaries. I have many times expressed my op-position to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is resurrect-ing that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day for the country, I believe, when the present-day Court re-turns to the McReynolds due process concept. Other cases cited by the Court do not, as implied, follow the McReynolds reasonableness doctrine. West Virginia v. Barnette, 319 U.S. 624, clearly re-jecting the "reasonableness" test, held that the Fourteenth Amendment made the First applicable to the States, 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. 3 Neither Thornhill v. Alabama, 310 U.S. 88; Stromberg v. California, 283 U.S. 359; Edwards v. South Carolina, 372 U.S. 229; nor Brown v. Louisiana, 383 U.S. 131, related to schoolchildren at all, and none of these cases embraced Mr. Jus-tice McReynolds' reasonableness test; and Thorn-hill, Edwards, and Brown relied on the vagueness of state statutes under scrutiny to hold them unconsti-tutional. Cox v. Louisiana, 379 U.S. 536, 555, and Adderley v. Florida, 385 U.S. 39, cited by the Court as a "compare," indicating, I suppose, that these two cases are no longer the law, were not rested to the slightest extent on the Meyer and Bartels "reasonableness-due process-McReynolds" constitutional test.

3 In Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940), this Court said:

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"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibi-tion of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the ac-ceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious or-ganization or form of worship as the individ-ual may choose cannot be restricted by law. On the other hand, it safeguards the free ex-ercise of the chosen form of religion. Thus the Amendment embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of so-ciety."

I deny, therefore, that it has been the "unmis-takable 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." Even Meyer did not hold that. It makes no reference to "symbolic speech" at all; 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. One can well agree with Mr. Justice Holmes and Mr. Justice Sutherland, as I do, 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. In fact, 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," "offended its sense of justice," or was "contrary to fundamental concepts of the English-speaking world," as the Court has sometimes said. See, e. g., Rochin v. California, 342 U.S. 165, and Irvine v. California, 347 U.S. 128. The truth is that a teacher of kin-dergarten, grammar school, 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 com-plete freedom of speech and religion into a Catholic church or Jewish synagogue. Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete constitutional right to go into

those places contrary to their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases. Our Court has decided precisely the op-posite. See, e. g., Cox v. Louisiana, 379 U.S. 536, 555; Adderley v. Florida, 385 U.S. 39.

In my view, teachers in state-controlled public schools are hired to teach there. Although Mr. Jus-tice McReynolds may have intimated to the contrary in Meyer v. Nebraska, supra, 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 se-lected curriculum. 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 original idea of schools, which I do not believe is yet abandoned as worthless or out of date, was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the Nation has outworn the old-fashioned slogan that "children are to be seen not heard," but one may, I hope, be permitted to harbor the thought that tax-payers send children to school on the premise that at their age they need to learn, not teach.

The true principles on this whole subject were in my judgment spoken by Mr. Justice McKenna for the Court in Waugh v. Mississippi University in 237 U.S. 589, 596-597. 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. This law would appear on the surface to run afoul of the First Amendment's freedom of assembly clause. 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, under the Fourteenth Amendment. It was argued that the fra-ternity made its members more moral, taught disci-pline, and inspired its members to study harder and to obey better the rules of discipline and order. This Court rejected all the "fervid" pleas of the fra-ternities' advocates and decided unanimously against these Fourteenth Amendment arguments. The Court in its next to the last paragraph made this statement which has complete relevance for us to-day:

"It is said that the fraternity to which complain-ant belongs is a moral and of itself a disciplinary force. This need not be denied. But whether such membership makes against discipline was for the State of Mississippi to determine. It is to be re-membered that the University was established by

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the State and is under the control of the State, and the enactment of the statute may have been in-duced by the opinion that membership in the pro-hibited societies divided the attention of the stu-dents and distracted from that singleness of pur-pose which the State desired to exist in its public educational institutions. It is not for us to entertain conjectures in opposition to the views of the State and annul its regulations upon disputable consider-ations of their wisdom or necessity." (Emphasis supplied.)

It was on the foregoing argument that this Court sustained the power of Mississippi to curtail the First Amendment's right of peaceable assembly. And the same reasons are equally applicable to curtailing in the States' public schools the right to complete freedom of expression. Iowa's public schools, like Mississippi's university, are operated to give students an opportunity to learn, not to talk politics by actual speech, or by "symbolic" speech. And, as I have pointed out before, 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 insti-tutions." Here the Court should accord Iowa educa-tional 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. But even if the record were silent as to protests against the Vietnam war distracting students from their as-signed class work, members of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Of course students, like other people, 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, some of the wounded and the dead being their friends and neighbors. It was, of course, 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 arm-bands.

Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncon-trolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the

fact that some of the country's greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental disci-pline, is an integral and important part of training our children to be good citizens -- to be better citi-zens. Here a very small number of students have crisply and summarily refused to obey a school or-der designed to give pupils who want to learn the opportunity to do so. 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 stu-dent groups, as is all too familiar to all who read the newspapers and watch the television news pro-grams, 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. 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. Turned loose with lawsuits for damages and injunc-tions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, 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. This case, therefore, wholly without constitutional reasons in my judg-ment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school sys-tems 4 in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.

4 Statistical Abstract of the United States (1968), Table No. 578, p. 406.

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MR. JUSTICE HARLAN, dissenting.

I certainly agree that state public school author-ities in the discharge of their responsibilities are not wholly exempt from the requirements of the Four-teenth Amendment respecting the freedoms of ex-pression and association. 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. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was mo-tivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view, while permitting expres-sion of the dominant opinion.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below. REFERENCES The Supreme Court and the right of free speech and press 15 Am Jur 2d, Colleges and Universities 22; 16 Am Jur 2d, Constitutional Law 341 et seq.; Am Jur, Schools (1st ed 167 et seq.)

18 Am Jur Pl & Pr Forms, Schools, Forms 18:141, 18:141.1 US L Ed Digest, Constitutional Law 925, 925.7, 925.8, 928 ALR Digests, Colleges and Universities 3; Constitu-tional Law 791; Schools 60, 62 L Ed Index to Anno, Constitutional Law; Schools ALR Quick Index, Freedom of Speech and Press; Schools Annotation References: The Supreme Court and the right of free speech and press. 93 L Ed 1151, 2 L Ed 2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976. Validity of regulation by public school authorities as to clothes or personal appearance of pupils. 14 ALR 3d 1201. Regulations as to fraternities and similar associa-tions connected with educational institution. 10 ALR3d 389. Use of school property for other than public school or religious purposes. 94 ALR2d 1274. Validity, construction, and application of statutes or regulations concerning recreational or social activi-ties of pupils of public schools. 134 ALR 1274, subd III superseded 10 ALR3d 389.

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