No Enclaves of Totalitarianism: The Triumph and Unrealized Promise of the Tinker Decision
Jamin Ben Raskin
American University Washington College of Law
American University Law Review, Vol. 58, 2009
American University, WCL Research Paper No. 2009-24
The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was a decisive victory for what Robert Post has called 'democracy' values over 'management' and 'community' values within a key institutional setting. For its dramatic infusion of democratic speech values into a classic authoritarian relationship - that between powerful adults and powerless children in an institutional setting - the Tinker decision was remarkable at its inception. But the true First Amendment meaning of the decision travels well beyond the schoolhouse gate and has yet to be recognized, much less realized. The Tinker formula, which protects speech that does not substantially disrupt functional operations or violate the rights of other participants, harmonizes the managerial power of democratic government to accomplish its ends through social institutions with the cross-cutting sovereign freedom of democratic citizens to speak inside these institutions. Tinker is the 'inside' speech correlate to the 'outside' speech principle of Brandenburg v. Ohio, which protects all speech in the street (or elsewhere in society outside of specific institutional contexts), that is not likely (or intended) to 'incit[e] . . . imminent lawless action.' But the striking implications of the Tinker formula remain vastly unrealized. The freedom to speak in most social institutions is not the default standard suspended in rare and extreme cases but rather a weak and secondary value regularly subordinated to the foreground interests of authority, property, hierarchy, punishment and retribution, militarism, social order, political stability, and commercial profit. We can see how the constitutional right of free speech is constantly balanced into oblivion against weighty social interests by the way that the school cases themselves have unfolded since Tinker was decided. Part II of this Article examines the roots and meaning of the powerful libertarian doctrine of Tinker and then canvasses how the doctrine has been eroded (much like the egalitarian vision of Brown) by the sharp undertow of sympathy for authoritarian structure on the Burger, Rehnquist, and Roberts Courts. The conservative Court has carved out major exceptions to Tinker in the interests of social conformity, sexual prudishness, protection of sensitive adults' feelings, and promotion of ideological unity for drug prohibition. Part III explores how a traveling Tinker principle differs from the illiberal doctrines of speech regulation and suppression that govern other institutional settings, focusing illustratively on the public sector workplace and the military. Part IV concludes by arguing that the current weakness of the Tinker commitment undermines democratic progress both in public schools and in other public institutions. The way to renew the momentum of the decision is to shift rhetorical emphasis from the more manipulable 'material and substantial interference' prong of the Tinker standard to the 'invasion of the rights of others' prong. Although consideration of the former has tended to subsume the latter, my hope is that doctrinal focus on concrete individual rights at stake will liberate courts from a tendency to validate abstract invocations of state interests as justifying censorship.
Number of Pages in PDF File: 27
Keywords: First Amendment, freedom of speech
Date posted: July 7, 2009
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