Digitus Impudicus: The Middle Finger and the Law - Wired

1468 University of California, Davis [Vol. 41:1403
Considered the most important decision protecting students’ speech
rights at school, 441 Tinker v. Des Moines Independent School District 442
upheld the rights of three public school students to protest the
Vietnam War by wearing black armbands to school. 443 Writing for a
seven-member majority, Justice Abe Fortas wrote that school officials
may not exercise absolute authority over student speech, because
students retain constitutional rights even when they are on school
grounds. 444 He emphasized that students are free to express their
views, absent a constitutionally sufficient reason for limiting their
speech, and that schools cannot limit students’ speech to an officially
sanctioned message. 445 Drawing upon the “marketplace of ideas”
theory of speech, 446 Justice Fortas emphasized the importance of
allowing our nation’s future leaders to gain “wide exposure to that
robust exchange of ideas which discovers truth ‘out of a multitude of
tongues.’” 447
campus conduct is subject to prosecution for disorderly conduct if it rises to the level
of fighting words. See supra Part II.A (discussing fighting words doctrine).
441 See Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the
Schoolhouse Gates: What’s Left of Tinker?, 48 DRAKE L. REV. 527, 527-28 (2000)
(surveying Supreme Court and lower court decisions after Tinker and contrasting
Tinker’s broad protection of student speech rights with later decisions that limited
scope of those rights). For additional analysis of Tinker, see generally Caplan, supra
note 438, at 120-32 (providing a detailed examination of the impact of Tinker on free
speech rights of students at public schools); Andrew D.M. Miller, Balancing School
Authority and Student Expression, 54 BAYLOR L. REV. 623, 628-37 (2002) (summarizing
the holdings of Tinker and subsequent Supreme Court cases on student speech).
442 393 U.S. 503 (1969).
443 Id. at 504.
444 Id. at 506 (stating that students do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate”).
445 Id. at 511; see also Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (noting
that First Amendment “does not tolerate laws that cast a pall of orthodoxy over the
classroom”).
446 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)
(arguing that “the best test of truth is the power of the thought to get itself accepted in
the competition of the market”). Holmes’s theory is predicated on the belief that
uninhibited and vigorous debate ultimately will uncover the truth and lead to the
overall evolution of society. See Stanley Ingber, The Marketplace of Ideas: A
Legitimizing Myth, 1984 DUKE L.J. 1, 4-6 (critiquing role of marketplace-of-ideas
theory in First Amendment jurisprudence).
447 Tinker, 393 U.S. at 512. The majority also argued that personal communication
among students is an inevitable and important aspect of public education. Id.; see also
Keyishian, 385 U.S. at 603 (noting that classroom is particularly important
embodiment of marketplace of ideas); Lisa M. Pisciotta, Comment, Beyond Sticks &
Stones: A First Amendment Framework for Educators Who Seek to Punish Student
Threats, 30 SETON HALL L. REV. 635, 638-39 (2000) (explaining that ACLU frequently