On the 50th Anniversary of Tinker v. Des Moines: Toward a Positive View of Free Speech on College Campuses

• Author: Christina Bohannan
• Position: Professor and Lauridsen Family Fellow in Law, University of Iowa College of Law
• Pages: 2233-2271

2233

On the 50th Anniversary of Tinker v. Des

Moines: Toward a Positive View of Free

Speech on College Campuses

Christina Bohannan*

ABSTRACT: Fifty years ago, the Tinker case confirmed the free speech rights

of students and identified the classroom as “peculiarly the marketplace of

ideas.” Upholding the students’ right to protest the Vietnam War, Tinker was

one of many Supreme Court decisions to establish the First Amendment as an

ally in movements for freedom, justice, and equality.

Today, by contrast, free speech has become a mantra for alt-right groups who

frequently spread hateful messages on college campuses. Although hate speech

is clearly harmful, eradicating it is difficult under current First Amendment

law, and many question whether efforts to limit hate speech could harm the

very marginalized groups they are intended to protect.

Although banning hate speech may not be feasible, there are alternative ways

to think about free speech that can ameliorate much of the damage that hate

speech causes. First Amendment canon holds that the answer to speech you do

not like is not suppression but “more speech.” As it has been interpreted,

however, this is a negative view of free speech in which the government’s role

is mainly to get out of the way and let the chips fall where they may.

I argue for a more positive view of the government’s role in dealing with hate

speech on college campuses. It suggests that universities should take

affirmative steps to encourage “more speech” on campus and spread the

burdens of free speech across the public who benefits from it. Under this view,

universities can protect the free speech rights of all individuals, mitigate the

harm hate speech causes to specific groups and individuals, and actively

encourage a more robust marketplace of ideas on their campuses.

*

Professor and Lauridsen Family Fellow in Law, University of Iowa College of Law.

Thank s to Jar red Stin dt for v aluabl e resear ch assistance and the Iowa Legal Studies Workshop for

excellent feedback on an early draft of this paper. Thanks also to the University of Iowa and the

ACLU of Iowa for hosting the Tinker anniversary event that inspired this Essay. I especially want

to thank John and Mary Beth Tinker for their courage and lifelong activism for peace and human

rights—it’s what the First Amendment is for.

2234 IOWA LAW REVIEW [Vol. 105:2233

I. INTRODUCTION ........................................................................... 2234

II.FIRST AMENDMENT PRINCIPLES .................................................. 2238

A.THE BARNETTE CASE............................................................ 2240

B.THE TINKER CASE ................................................................ 2242

III.CAMPUS FREE SPEECH WARS AND THE PROBLEM OF

HATE SPEECH .............................................................................. 2244

A.THE HARM OF HATE SPEECH ................................................. 2245

B.THE CRITIQUE OF THE “MORE SPEECH” PRINCIPLE FOR

COMBATTING HATE SPEECH .................................................. 2247

C.WHY NOT CREATE AN EXCEPTION FOR HARMFUL

HATE SPEECH? ...................................................................... 2249

D.(GOOD) ARGUMENTS FOR NOT BANNING HATE SPEECH .......... 2251

1.The Problem of Driving Hate Groups

Underground .............................................................. 2253

2.The Problem of Definition and Vagueness in

Speech Laws ................................................................. 2253

3.The Problem of Democratic Legitimacy ................... 2258

4.The Problem of Content and Viewpoint

Discrimination ............................................................. 2258

5.The Problem of Public Distrust in Government

Enforcement ................................................................ 2259

6.Is the University a Special Case? ................................. 2262

IV. TOWARD A POSITIVE VIEW OF FREE SPEECH ON

COLLEGE CAMPUSES ................................................................... 2263

A.SPREADING THE BURDENS OF FREE SPEECH ............................. 2264

1.Bias Response Teams .................................................. 2266

B.TAKING “MORE SPEECH” SERIOUSLY ...................................... 2269

V.CONCLUSION .............................................................................. 2271

I. INTRODUCTION

In February of 2019, I sat on a dais at the University of Iowa with local

celebrities John and Mary Beth Tinker, who, as kids and anti-Vietnam War

activists, defended their free speech rights all the way to the Supreme Court.

The occasion was a panel discussion to celebrate the 50th anniversary of the

Court’s decision in Tinker v. Des Moines Independent Community School District.

The Tinker Court upheld the youths’ right to engage in peaceful and non-

disruptive protest in public schools and famously confirmed “that [n]either

2020] TOWARD A POSITIVE VIEW OF FREE SPEECH 2235

students [nor] teachers shed their constitutional rights to freedom of speech

or expression at the schoolhouse gate.”1

My role, as the invited law professor on the panel, was to provide legal

context for the Court’s decision. As John and Mary Beth Tinker reflected on

their experiences in the protests and ensuing litigation, however, it seemed

that my presence was somewhat superfluous: They knew almost as much free

speech law as I did. And yet, their perspective was different from mine.

Although they are strong supporters of the First Amendment, their primary

concern has not been on the development of free speech law, but on the

activism for peace and social justice that the law has allowed them to pursue.

For them, the First Amendment largely has been a means to those ends. Thus,

even when they won a Supreme Court case—doing as teenagers something

most career lawyers can only dream of—they confessed that it felt like a hollow

victory. Their school protests had taken place in the early stages of the

Vietnam War, at a time when they dared to hope that taking a stand could

head off the worst of it. But by the time the Supreme Court upheld their right

to protest it, the war had dragged on for several years with tens of thousands

of lives lost.

Listening to the Tinkers that evening, one might have thought that social

justice activists would be natural devotees of the First Amendment. At the end

of the event, however, a student asked a question that turned that assumption

on its head. The question related to an incident that had recently occurred

on the University of Iowa campus. Just five days earlier, a student organization

called Young Americans for Freedom (“YAF”) had held a demonstration on

campus in which the group displayed a banner that read “Build the Wall.”

This demonstration just happened to occur during a University public

relations campaign that asked students to tweet about why they love the

University of Iowa at #iLoveUIowa. Following the YAF demonstration,

student organizers launched a counter campaign on Twitter known as

#DoesUIowaLoveMe. The campaign, which later expanded widely to other

social media, criticized University officials for allowing YAF’s “Build the Wall”

display and quickly evolved into a platform to air more general grievances

related to diversity, equity, and inclusion at the University.2

Referring to this incident, the student at the Tinker event asked the

panelists, “How can students be expected to love the University when the

1. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Although

Tinker is credited with establishing students’ free speech rights in schools, the majority opinion

stated that “[t]his has been the unmistakable holding of this Court for almost 50 years.” Id.

2. See Jeremy Bauer-Wolf, #DoesUIowaLoveMe, INSIDE HIGHER ED (Feb. 27, 2019), https://

www.insidehighered.com/news/2019/02/27/u-iowa-students-launch-digital-campaign-around-

minority-issues-campus [https://perma.cc/R87D-WP3E]; Charles Peckman, #DoesUIowaLoveMe?

UI Students Ask Question in Social-Media Movement, DAILY IOWAN (Feb. 27, 2019), https://

dailyiowan.com/2019/02/27/doesuiowaloveme- ui-students-as k-question-in-social-media-movement

[https://perma.cc/W8DE-A8DN].