COLD OPEN

J TINKER: He sat me down. He really tried to convince me to take that armband off.
And he said, "Well, maybe you've been listening to bad advice. Something like this
could really keep you out of college.” He said, “Well, you know, it's important during a
time of war that the citizens support the government.”

MATT: It’s Thanksgiving weekend 1965 and 15-year-old John Tinker is on a bus back
to Iowa. He and thousands of his fellow Americans had just marched on Washington,
against the war in Vietnam.

J TINKER: On the way back, there was a discussion of what we might do to

continue to express our dissent with regard to the war. And a man on the bus
said he had heard that some people were going to be wearing black armbands.

MIKE: Black armbands. That’s an idea he would take back to his classmates. John
Tinker doesn’t know it, but in a few weeks he’ll be sitting in the principal’s office. In a few
months, he’ll be answering questions from a lawyer. And fifty years later, we’ll
remember this moment as a turning point in the history of the First Amendment. I’m
Mike Vuolo.
MATT: I’m Matthew Schwartz.
MIKE: And this ... is Unprecedented.

TITLE BREAK

MATT: We’re just talking armbands to protest the war. No, no walk out. No sit-ins. No
chants. No signs.
MIKE: Yeah, that’s it. On Thursday, December 16th, dozens of children, including John
Tinker, were planning to show up at various schools around Des Moines wearing these
black armbands.

J TINKER: I was anxious about it. It wasn't really fear, it just was sort of
nervousness of not knowing what was going to happen.

MIKE: One of Tinker’s friends, a kid from from Roosevelt High School, wrote an article
for the school newspaper about what they were doing—and why. It was titled We
Mourn. But the school wouldn’t publish it.

J TINKER: The faculty advisor took the matter to the school principal and the
principal of Roosevelt got on the phone to the principals of the other high schools
in Des Moines, and they decided to prohibit the wearing of the armband.

MATT: Why?
MIKE: Because it was 1965 and the idea that kids might voice opposition to a war in
school was unheard of in most parts of the country. So, on Wednesday, the day before
the protest was scheduled, the city newspaper, the Des Moines Register, picked up this

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story and quoted a school official, who said there was a general policy against “anything
that is a disturbing situation within the schools.”
MATT: A disturbing situation?
MIKE: Mm-hmm.
MATT: Isn’t everything in school a disturbing situation?
MIKE: That was certainly my experience.
MATT: So now this is in the Des Moines Register and everybody knows, you are not
allowed to wear black armbands to protest this war.
MIKE: Right, and some of the kids had parents who taught in the school system. They
didn’t wanna get in trouble. Or even worse, get their parents in trouble.

J TINKER: It was pretty much at the last minute, just before school, I called the
students that were going to be participating in this and suggested that we put it
off. I thought that, you know, here we are walking into the lion's den and we
hadn't actually discussed how we were going to handle that.

MIKE: So they did. They, they put it off. Just one problem.

J TINKER: My sister, Mary Beth, had already left. She had left for school early.

MIKE: Thirteen-year-old Mary Beth Tinker.

MB TINKER: And I stopped to see my friend, Connie, at her house on the way.
And she said you better take off that armband. You’re gonna get in trouble. And I
told her, but Connie, you know, I want to speak up about the war. Because we
would watch the news and it was so powerful for us kids as we came home from
school and were cooking dinner and …
ANNOUNCER: This is CBS Evening News with Walter Cronkite.
MB TINKER: We would see people like Walter Cronkite on the news ...
CRONKITE: Just six days ago, the people of America were jolted by an
announcement.
MB TINKER: … saying the body count today in Vietnam is eight. Next day, the
body count today is 10.
CRONKITE: 240 Americans killed. 470 wounded.
MB TINKER: And it just went on and on like that.
CRONKITE: If the American public had not known until then, they know now:
The United States is indeed at war.
MB TINKER: It was Christmastime and so the message was the message of
Christmas, and really the message that goes through all faiths: peace, love,
brotherhood. That was the message we were getting from so many adults. But
then on the TV we saw instead war, killing, and bombing. And it was really
emotional for us kids.

And so the North Vietnamese had proposed a Christmas truce that year in 1965,
Christmastime. And Robert Kennedy responded to the idea of a truce.

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 RFK: If I had my way, I’d end all of the war on all sides in Vietnam. I don’t think
it’s that easy.
MB TINKER: Us kids, we heard about that, and we thought, that’s a great idea.
We should have a truce this Christmas. The adults, they should stop killing each
other. So, that was part of our message. And the other part of it was to mourn for
the dead in Vietnam on both sides of the war. And that’s what made it so
controversial.

MIKE: Mary Beth Tinker arrives at school that morning, unaware that her brother
postponed the protest.

MB TINKER: I was really nervous. I was the only student at my school, Warren
Harding Jr. High School, that was wearing an armband. And nothing much
happened in the morning. Mostly people pretty much ignored the armband. I got
teased a little at lunch by some of the boys at the boys table, but they always
teased us girls at the girls table anyway, so that didn’t bother me. But after lunch,
I saw my math teacher, my favorite teacher, Mr. Moberly, with a pink slip in his
hand standing by the door of math class. So I knew I was in trouble then.

I took the pink slip and I went down to the office and the girl’s advisor told me that
I would have to take off the armband because it was against the rules. Well, then
I had a big moral dilemma. So, I looked around the office and I looked at Mrs.
Tanner, and in a great stand of courage I took off that armband. But she said,
you know, you’re going to be suspended anyway because it’s against the rules.

MIKE: There was another kid who did end up wearing an armband that day. And he
was suspended too.
MATT: So, so all the other would-be protesters are in a pretty tough spot now. Do they
wear the armband knowing that they could be suspended like Mary Beth?
MIKE: Yeah, remember there were several dozen students planning to protest. But
most of them backed out at this point. So, that afternoon, John Tinker and a few others
got together to talk—what now?

J TINKER: We tried to call the school board president. And he said that he was
not going to talk with us, that it wasn't an important issue and we could take it up
with the school board in January if we wanted to.

MIKE: John decided that he wasn’t gonna wait until January. He would go to school the
next day—Friday—with his armband.

J TINKER: I had mine in my pocket that morning when I left the house, I went to
orchestra practice—I played the violin in the school orchestra—and I was a little
embarrassed to put it on, you know, while everybody was watching. So, after
orchestra practice, I went up to my homeroom and again, I didn't have the
armband on yet. So, after homeroom, I went into the restroom so that I could kind
of pin it on in private and it was a problem to pin it on. It was held on with a safety

3
 pin and I only had one hand to do it because, you know, an armband on your
arm. So a kid that I knew walked into the restroom and he saw me struggling with
that and he helped me pin it on. Then I went to my first class of the day with the
armband on.

MIKE: John was waiting for someone to say something about his blatant flouting of this
armband rule. But three classes into the day, nothing.

J TINKER: When I got dressed after gym class, I thought, "Maybe people can't
see it very well," because I had it pinned on over a dark suit coat and so I pinned
it on over the white shirt and it stood out very well and I went to lunch like that.
And I sat at my regular lunch table with my regular friends. And then some kids
came over from another table and really started to harass me and called me a
commie and a pinko, and one of the football players came over to our table.
KLINE: My name is Stephen Klein. When I was in high school at Des Moines
North, I was a football player. I was the starting offensive right tackle. I probably
weighed about 240 pounds.
J TINKER: Back then football players tended to be rather conservatively minded.
KLINE: I walked into the cafeteria and I saw John seated at one of the tables,
and a group of students were taunting him.
J TINKER: And I was surprised because he addressed the two kids that were
harassing me.
KLINE: What I remember seeing is someone who was being ganged up on and
that didn't sit right with me. And I thought, even as a dimwitted 15 year old, I felt
that if somebody had an opinion to express, they had a right to express it. You
know, in 1965, it wasn't necessarily popular among 15 year olds to be opposed to
the war. I think most of us were probably sort of knee-jerk following what our
parents felt about it, and so anti-war feeling was kind of rare.

So just kind of on the spur of the moment, I walked over and I interrupted the
jeering and the taunting and I said, "You know, you can agree or disagree with
John's view of the war, but he has a right to his opinion and he has a right to
express it. So just leave him alone.”
J TINKER: And he said, "You know, you have your opinion about the war and
John has his opinion about the war and John has a right to his opinion, so leave
him alone." And I just thought that was outstanding on his behalf.
KLINE: I remember looking at John and John looked at me and he had a
quizzical look on his face because we weren't close friends in high school. I
looked at him, as if to say, kind of silently, are you OK? And then I just kind of
turned on my heel and walked out. When I was in high school I was just as much
a jerk, a bully, as the next person, and in this case I happened to get lucky and
do the right thing for once in my three year career at high school.
J TINKER: When I went to my first afternoon class, there was a telephone call to
the class. And the teacher took it and I remember he looked back at me and he
pointed at me, and he said, "John Tinker, to the office." So, I got up and walked
past everybody and walked down the empty halls to the office, and talked to the

4
 principal. And he sat me down and he really tried to convince me to take that
armband off. And he said, "Well, maybe you've been listening to bad advice. You
know, something like this could really keep you out of college.” He said, “Well,
you know it's important that during a time of war that the citizens support the
government.”

We talked for quite a while, maybe 45 minutes or so, and finally he said, "Well,
I'm going to ask you now, you can take the armband off and go back to class and
it will be just like nothing happened. But I don't think you're gonna do that, are
you?" And I said, "No. No, I'm not." And he said, "Well, then you can’t be in
school with the armband on." And then on the way out, he said, "Now I suppose
you're going to go tell the newspaper." And I said, "You know it was actually the
school board that called the newspaper the first time?" And he said, "I guess
you're right."

MIKE: School was letting out for winter break anyway, so John actually didn’t miss
much. But, what would he do when break was over? He couldn’t show up with a black
armband, otherwise he’d be sent home again.

J TINKER: When I went back to school in January, I wore all black clothing and
everybody knew what that meant.
VUOLO: That's one way to get around the armband prohibition, wear all black
clothing. They're not going to call you down to the principal's office and tell you to
take off all your clothes.
J TINKER: That's right. It was a lesson to me in the futility of banning a symbol
because an idea will find another symbol.

MIKE: The Iowa Civil Liberties Union met with the Tinkers—and the other kid who was
suspended, his name was Chris Eckhardt—and concluded that these kids had a First
Amendment case.
MATT: If the Tinkers win, they will be establishing the rights to free speech for every
student in the country! But if they lose …
MIKE: If they lose, then even what you called, Matt, “the most moderate protest you’ve
ever heard of”—a silent, symbolic expression of dissent—even that can be shut down in
school.
MATT: Do students have First Amendment rights in school? After the break, John
Tinker goes back to Washington.
MIKE: Stick around.

5
 NINA: My memory is that Tinker was the first big case I really remember
reporting, remember sitting there and reading, remember digesting and figuring
out what it meant.
MATT: Were you in your mid 20s, at that point?
NINA: I think we're not going to discuss how old I was, but I was definitely
(laughter) definitely in my 20s.
MATT: It’s on Wikipedia, like people can do the math.
NINA: Yeah, they can do the math but I don't want them to. I want them to think
that I'm, oh I don’t know, 50.
MATT: I think that seems fair.
NINA: I think it seems fair too. Extremely fair.
MIKE: So, we are talking with, perhaps torturing, NPR’s Nina Totenberg. Nina,
tell me what your very young, embryonic mind was going through at that point?
What were you thinking about this case?
NINA: I thought that the idea that kids could not express an opinion in a
respectful manner, by wearing an armband, was cuckoo bird.

MATT: An armband. It’s the most moderate protest you’ve ever heard of.
MIKE: Back in the late sixties, for public, middle and high school students, this was a
subversive act.
MATT: It was. The natural order in which children are obedient and unquestioning was
starting to unravel. And for many adults, the protests and riots and demonstrations and
assassinations of that decade represented a country on the brink of collapse.

EPPS: It simply was this kind of cracking open of the nation.

MATT: This is Garrett Epps. He’s a constitutional scholar and law professor at the
University of Baltimore.

EPPS: Very few people had experienced serious division inside the country over
a war. That hadn't happened since World War I, which was pretty much a dim
memory, even for people like the justices. And this feeling that everything was
gonna come unstuck if we didn't keep the lid on is hard to replicate now because
there is no lid, right? No one keeps the lid on. But at that time that was pretty
clearly the haunting fear that people had. This is the kind of worst year in
American history. We had had assassinations.
ANCHOR: Senator Kennedy has been shot—is that possible?
EPPS: The Tet offensive and the collapse of the American war effort in Vietnam.
ANCHOR: The war came to Saigon early in the morning…
EPPS: The withdrawal from the race of President Johnson and sort of
subsequent political turmoil. The rise of George Wallace.
WALLACE: And I say segregation now, segregation tomorrow, and segregation
forever!
EPPS: The country was very much on edge and along comes this case in which
these kids have worn these black armbands. You know, this is all they did. And

6
 yet you can see that among the justices, there’s just this incredible nervousness:
What will this lead to?
NINA: It was the ultimate, respectful protest by people of an age to have an
interest in this subject. Because after all, high school kids turn 18, get drafted, go
off to war, get injured and die. And so it was even more understandable to me
that high school kids would want to express their opinion about the war in a
respectful way, then it was that they would want to vote.
MATT: Since the war would directly affect them.
NINA: Remember the 18-year-old vote didn't exist in 1968. This was really the
only way these kids could express themselves about something that directly
affected them.
MATT: Hmm. So it's even more important then, that they be allowed to do it, right
that the First Amendment be interpreted in a way that kids do have the right to
speak.
NINA: Well, I'm sure to them it was incredibly more important.

MATT: And so the students—pacifists in the classroom—prepare for battle in the

courtroom.

CJ WARREN: Number 21, John F. Tinker and Mary Beth Tinker, minors …

MATT: On the one side, we have the Tinkers.

MIKE: Representing every student who feels unjustly censored at school.
MATT: And on the other side, we have the Des Moines, Iowa, school district.
MIKE: Representing every educator who is fearful of losing control in the classroom.
MATT: Students versus the school district! Kids versus adults!

JOHNSTON: Mr. Chief Justice and may it please the Court.

MATT: Here’s the attorney for the Tinkers, Dan Johnston, arguing that if we want to
produce informed citizens …

JOHNSTON: … it's important that the idea of freedom of dissent and

inquiry and expression be maintained in the schools.

MATT: Johnston concedes that schools should of course be able to enforce discipline
and order, but the Tinkers, he points out, had no intention of creating disorder. It was a
silent message in support of the truce. But as Justice Byron White tells Johnston, even
a silent message can be deafening.

WHITE: Why did they wear the armband to the class, to express that
message?
JOHNSTON: To express the message, yes.
WHITE: To everybody in the class?
JOHNSTON: To everyone in the class, yes your Honor.

7
 WHITE: And everybody while they were listening to some other subject
matter was supposed to also be looking at the armband and taking in that
message?
JOHNSTON: They were intended to see it in a way they would not be
distracting.
WHITE: And to understand it?
JOHNSTON: And to understand it, yes your Honor.
WHITE: And to absorb that message?
JOHNSTON: And to absorb the message.
WHITE: While they're studying arithmetic or mathematics, they’re
supposed to be taking in this message about Vietnam.
JOHNSTON: I think they chose the message, chose the method of
expression, your Honor, which would not be distracting when they are in
class.
WHITE: Physically, it wouldn’t make a noise, it wouldn't cause a commotion
but don't you think it would cause some people to direct their attention to
the armband and the Vietnam War and think about that rather than what
they were thinking about—supposed to be thinking about in the
classroom?
JOHNSTON: I think perhaps your honor it might have distracted some
students, just as many other things do in the classroom that are allowed
from time to time.

MIKE: Byron White is implying that kids cannot visually take in the image of the
armband, and also pay attention in class simultaneously. Which makes me wonder if
he’s ever been to high school?
MATT: Well, in fairness, Justice White was one of only six people in his high school
class.
MIKE: Really?
MATT: So, yeah, not a lot of opportunity for disruption.
MIKE: But there’s not even a suggestion that the armbands ever disrupted anything. In
fact, one of John Tinker’s classmates, a guy named Bob Caldwell, he remembers a
titillating rumor going around the school that was far more disruptive. Here’s Caldwell.

CALDWELL: I remember, there was a young woman and there were stories that
she was protesting the war by doing some very unusual things like not wearing
underwear, which was probably nonsense. But guys were dropping pencils in the
library trying to confirm that. And that was more disruptive to the learning process
than what the Tinkers were doing at the time.

It was barely a ripple, it was "Oh yeah, did you hear Tinker got kicked out for
wearing an armband?" The school board's actions were causing more disruption
in the school, in the learning process amongst the student body, than any of the
actions that the Tinkers took.

8
MIKE: So, things that were more disruptive than the armband protest: One: rumor of a
girl going commando at school; and Two: the school board making a big deal of the
armband protest.
MATT: Well, that’s the Tinkers’ side of the story.
MIKE: Okay.
MATT: The school district had a different view.

WARREN: Mr. Herrick.

HERRICK: Mr. Chief Justice and Associate Justices.

MATT: Allan Herrick is attorney for the Des Moines schools. He argued that being a
school administrator is not an easy job. We’ve got thousands of students in the district
and we have to keep order. And you want us to wait for an actual disruption before we
implement a rule? Part of the job is anticipating when the powder keg is about to
explode.

HERRICK: Officials of the defendant's school district have the

responsibility for maintaining a scholarly, disciplined atmosphere within
the classroom. They have an obligation to prevent anything which might be
disruptive for such an atmosphere. As we view it, the right of freedom of
speech on the school premises must be weighed against the right of the
school administration to make a decision which the administration in good
faith believed was reasonable to preserve order and to avoid a disturbance
and disruption in the school room.

MIKE: I sympathize with the school district. I do. It’s important that schools are able to
teach. But protesting our nation’s involvement in war is the most basic political speech.
I’m not sure we want to take that right away from our children in order to “preserve
order,” as Herrick put it, just because that speech might be disruptive.
MATT: Well, the Supreme Court has to balance competing interests. What’s more
important: The rights of school children to protest and possibly cause a disruption? Or
the obligation of schools to prevent disruption so that they can educate? The justices
kept hammering at the lawyer for the school district, asking for any evidence that the
black armbands would lead to disruption. Here’s Justice Thurgood Marshall.

MARSHALL: Mr. Herrick, would I be correct in assuming that if violence

had occurred in any of the schools in Des Moines, the school officials
would've known about it? And my second question will be, if the school
board knew about, wouldn't they put in evidence about it?
HERRICK: That would sound reasonable, Your Honor. Yes.
MARSHALL: Now, what evidence did the school board and the school
officials have when they adopted this resolution?
HERRICK: It was a matter of the explosive situation that existed in the Des
Moines schools at the time the regulation was adopted. A former student of
one of our high schools was killed in Vietnam. Some of his friends are still

9
 in school. It was felt that if any kind of a demonstration existed, it might
evolve into something which would be difficult to control.
MARSHALL: Do we have a city in this country that hasn’t had someone
killed in Vietnam?
HERRICK: No, I think not, your honor. But I don’t think it would be an
explosive situation in most cases. But if someone was going to appear in
court with an armband here, protesting the thing, that it could be explosive.
That’s the situation we find ourselves in.
MARSHALL: It could be.
HERRICK: What?
MARSHALL: It could be—is that your position?
HERRICK: Yes sir. It could be.
MARSHALL: And there was no evidence that it would be?

MIKE: So the school was worried about the possibility that black armbands could,
maybe, lead to an explosive situation.
MATT: And that was too many assumptions for the Supreme Court.

CRONKITE: The Supreme Court today endorsed the right of student protest, so
long as the protest does not disrupt order or interfere with the rights of others.
The Court said students do not leave their freedoms of speech and expression at
the school door.

MATT: In a 7-2 decision, Justice Abe Fortas wrote the now famous line: It can hardly be
argued that either students or teachers shed their constitutional right to freedom of
speech or expression at the schoolhouse gate. Here’s constitutional scholar Garrett
Epps.

EPPS: Now when you are doing a student speech case anywhere in the country
your brief will always start with that Fortas quote.

MATT: The court creates what seems like a hard and fast rule: The mere fear of
disruption on the part of school officials is not enough to justify banning speech. Schools
still have the right to maintain order and discipline, but that doesn’t mean squelching
student speech because it could be disruptive. They need evidence that it will be.

EPPS: The school district has to show that there's actually some factual
probability of what they call material and substantial disruption. Not distraction,
not that people might talk about it in the halls but that something really would
occur that would cause the educational process to be impeded. Basically schools
are nearby, but they don't live in downtown Speechville. Schools are suburbs of
free speech.
J TINKER: There are many people who take stands and don’t get support, and
are knocked down unjustly. But the confidence that this generation of students
has, that they do have their First Amendment rights, I mean I’m extremely proud
of that. I’m proud of them. I feel very honored to have a place in that history.

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MIKE: Unprecedented was produced by WAMU. Our editor is Poncie Rutsch, and our
audio engineer is Ben Privot.
MATT: JJ Yore is General Manager of WAMU. Andi McDaniel is in charge of all
content. If you like what you heard today, tell a friend, tell a stranger by leaving a review
on Apple Podcasts, and if you’re in school, shout it in the hallways! You have the right!
MIKE: If you have any thoughts or feedback on the show, send us a tweet with the
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MIKE: Click the link in the show notes and tell them you're giving because you love
Unprecedented.

CODA

NINA: Did you ever have a schoolhouse gate?

MATT: I was going to ask you that.
MIKE: No. [laughing]
NINA: I never had a schoolhouse gate.
MATT: I think I've seen them in movies.

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