Speech and press cases: Tinker, New York Times v. Sullivan, the Pentagon Papers, Texas v. Johnson

Example 1

1. Ask who is speaking, and where. It is a student, in a public school. A public school is part of the government, so the First Amendment applies.
2. Ask how she is speaking. She is not giving a speech. She is wearing a shirt that carries a message. Clothing that expresses an idea is a kind of speech.
3. Now match the situation to a case. Among the four speech and press cases, only one is about students at school: Tinker v. Des Moines (1969). Students in Des Moines, Iowa, wore black armbands to school to protest the Vietnam War, and the school suspended them.
4. The Court ruled for the students. It said students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” A school may limit student speech only if it would seriously disrupt the school.
5. Texas v. Johnson is also about an action that expresses an idea, which is called symbolic speech. But Johnson is about burning a flag at a protest, not about a student at school. The school setting points to Tinker.
6. Here nothing was disrupted. Under Tinker’s rule, the school should not have suspended her for the shirt.

Answer: Tinker v. Des Moines (1969): a school may limit student speech only if it would seriously disrupt the school. Nothing was disrupted, so the suspension goes against the rule.

Example 2

1. Look first at the timing. The story has not been printed yet. The official wants it stopped before it comes out.
2. Stopping something from being published before it comes out, instead of punishing it afterward, is called prior restraint. (Prior means before; a restraint holds something back.)
3. The case about prior restraint is New York Times Co. v. United States (1971), the Pentagon Papers case. The government tried to stop the New York Times and the Washington Post from printing a secret study of the war in Vietnam, and the Court ruled 6 to 3 for the newspapers.
4. The Court repeated an earlier rule: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” In other words, the Court begins by assuming that an order stopping publication is unconstitutional.
5. Sullivan is close, because it is also about an official and a newspaper. But in Sullivan the statement had already been printed, and the official sued afterward. The rule there is about what an official must prove to win that lawsuit.
6. Here nothing has been printed, and the official is asking for an order to stop it. That is prior restraint, the subject of the Pentagon Papers case.

Answer: New York Times Co. v. United States (1971), the Pentagon Papers case: an order stopping publication is almost never allowed. Sullivan is about a lawsuit after a statement has been printed.