Tinker, Don't Censor

0:00Welcome to First Principles and Last Things on Radio Free Hillsdale 101.7 FM, where we follow the news below the headline and consider it, Constitutionally, I'm your host Andrew Scofield, and more than 50 years ago, the Supreme Court said students do not shed their constitutional rights at the schoolhouse gates. But what if the student never actually says the word of school wants to ban this week? The Supreme Court declined to answer that question, leaving a Michigan school speech battle, and an old First Amendment line right where they were. The case began at Tri-County Middle School in Howard City, Michigan. Two students wore sweatshirts, reading Let's Go Branden, the political slogan that became a euphemism for a profane chant against then-president Joe Biden. School officials told them to remove the shirts the family sued, arguing that the message was political speech and that the shirts themselves contained no profanity. But the sixth circuit

1:04disagreed. The court held that school officials could reasonably understand the slogan as vulgar and therefore restrict it. On Monday, the Supreme Court declined to hear the appeal, leaving that ruling in place. Now to understand why that matters, we have to go back to 1969 and to a case called Tinker versus Des Moines. Three Iowa students wanted to wear black armbands to protest the Vietnam War. Their schools said no. The Supreme Court sided with the students, famously declaring that they do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gates. The basic rule was that a school could not suppress student expression simply because officials disliked its message. The school generally needed a reason to expect a material and substantial disruption. However, that is defined, but Tinker was not the last word. In 1986, came Bethel School District versus Fraser. A student delivered a speech filled with

2:06innuendo at a school assembly in the Supreme Court allowed the school to discipline him, recognizing that public schools have greater authority to restrict vulgar or inappropriate speech. And so that leaves us with two principles. Tinker strongly protects political expression. Fraser gives schools authority over vulgar expression. And there's a reason that distinction is so important. The First Amendment does not require a school to treat a classroom exactly like a public street corner. Schools have to educate children, maintain order and set standards of conduct. But those same schools are arms of the government. So when the speech they regulate is political, their authority runs directly into one of the freedoms the First Amendment was designed to protect. So what happens when the same message is both? That is the disagreement in the Michigan case. The six-thirket majority said the political nature of let's go Brandon did not prevent a school from treating its commonly understood meaning as vulgar, but judge John Bush

3:10dissented. He argued that Fraser should apply to speech that is plainly vulgar or lured not a sanitized political slogan whose objectionable meaning requires translation. In his view, Tinker should control. And that distinction matters well beyond one sweatshirt because public schools have a legitimate responsibility to maintain order and to teach students how to communicate appropriately. But they are also government institutions and when government regulates political speech, the First Amendment requires us to ask exactly what is being prohibited. And why? Is it the words? Is it their meaning? Is it their effects on the students or the fact that somebody finds them offensive? The answer determines which constitutional rule applies. And so the Supreme Court did not settle that question this week. A denial of review is not an endorsement of the lower courts reasoning. So more than half a century after Tinker, the basic principle remains. Students have

4:11free speech rights, but exactly where those rights meet the schoolhouse door? Well, federal courts are still tinkering with that. Thank you for listening to First Principles and Last Things. I'm Andrew Scofields and if you want to follow the news below the headlines, be sure to follow along on Spotify or Apple Podcasts as well as First Principles Last Things.substac.com where I periodically publish articles pertaining to the subjects discussed. I hope to see you next time when we dive into the next big story.