It was a rare moment of surprise and drama Wednesday night inside the Supreme Court chamber. At the end of a Supreme Court Historical Society lecture on Tinker v. Des Moines Independent Community School District, the landmark ruling on student free speech rights, the speaker announced that plaintiffs Mary Beth and John Tinker were in the audience.
The siblings stood and did not speak, but were greeted by a burst of applause from the several hundred spectators in recognition of their risky defense, at the height of the Vietnam War, of their First Amendment right to wear antiwar armbands as public school students. The high court's 1969 ruling famously declared that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
The event was the last in a series of lectures sponsored by the society focusing on individual plaintiffs involved in landmark Supreme Court cases. Each lecture is hosted by a justice, and Wednesday night Justice Samuel Alito Jr. greeted the audience. It was an apt role for Alito, who invoked the Tinker ruling in a concurrence in the 2007 case Morse v. Frederick, cautioning against expanding restrictions on student speech.
Alito said it is good to remember that Supreme Court cases involve "real people," not "abstract things," and complimented the society for its lecture series. But he did not spill the beans about the precence of the Tinkers in the court.
Kelly Shackelford, a society trustee and president of the Liberty Institute, gave the lecture on the Tinker case. As someone who litigates on behalf of religious organizations and individuals, Shackelford said he invokes the Tinker decision frequently. "You can't do religious freedom without speech," he said.
Mary Beth Tinker was 13 and her brother John was 15 in 1965 when they were suspended from attending Des Moines public schools for wearing black antiwar armbands. They and their parents received threats as word spread about their actions. "People who stand up typically have to pay a price," Shackelford said.
Lower courts upheld the school district's actions, but the Supreme Court in 1969 voted 7-2 in favor of the Tinkers and Christopher Eckhardt, another student. The Tinker family watched the argument, though Mary Beth Tinker said after the lecture that she did not remember much of it, Justice Abe Fortas wrote the majority opinion, finding that the students' protest was not disruptive and was protected by the First Amendment.
In years since, Shackelford said, the lower courts and the Supreme Court have "pulled back" somewhat from the Tinker ruling in the interest of school discipline and order, but it still remains as a crucial declaration that free expression is "at the very heart, the very core, of our free society."
Mary Beth Tinker and Mike Hiestand, a lawyer formerly with the Student Press Law Center, have been on a nationwide "Tinker Tour," complete with an RV, to spread the word about the case and about the necessity for robust free speech rights for students. Their stop at the Supreme Court, they said, made for a "magical night." They will continue their tour for three more weeks, and resume it next spring.