U.S. Supreme Court Brandenburg v. Ohio, 395
U.S. 444 (1969) Brandenburg v. Ohio No. 492 Argued February 27,
1969 Decided June 9, 1969 395
U.S. 444 APPEAL FROM THE SUPREME COURT OF
OHIO Syllabus Appellant, a Ku Klux Klan leader, was convicted under the Ohio
Criminal Syndicalism statute for

															"advocat[ing] . . . the duty, necessity, or propriety of crime,
sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform"

															and for

															"voluntarily assembl[ing] with any society, group or assemblage
of persons formed to teach or advocate the doctrines of criminal
syndicalism."

															Neither the indictment nor the trial judge's instructions
refined the statute's definition of the crime in terms of mere
advocacy not distinguished from incitement to imminent lawless
action. Held: Since the statute, by its words and as applied,
purports to punish mere advocacy and to forbid, on pain of criminal
punishment, assembly with others merely to advocate the described
type of action, it falls within the condemnation of the First and
Fourteenth Amendments. Freedoms of speech and press do not permit a
State to forbid advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action. Whitney v. California, 274 U.
S. 357 , overruled. Reversed. PER CURIAM.

															The appellant, a leader of a Ku Klux Klan group, was convicted
under the Ohio Criminal Syndicalism statute for "advocat[ing] . . .
the duty, necessity, or propriety Page 395 U. S. 445 of crime, sabotage, violence, or unlawful methods of terrorism
as a means of accomplishing industrial or political reform" and
for

															"voluntarily assembl[ing] with any society, group, or assemblage
of persons formed to teach or advocate the doctrines of criminal
syndicalism."

															Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced
to one to 10 years' imprisonment. The appellant challenged the
constitutionality of the criminal syndicalism statute under the
First and Fourteenth Amendments to the United States Constitution,
but the intermediate appellate court of Ohio affirmed his
conviction without opinion. The Supreme Court of Ohio dismissed his
appeal sua sponte "for the reason that no substantial
constitutional question exists herein." It did not file an opinion
or explain its conclusions. Appeal was taken to this Court, and we
noted probable jurisdiction. 393 U. S. 94 (196). We reverse.

															The record shows that a man, identified at trial as the
appellant, telephoned an announcer-reporter on the staff of a
Cincinnati television station and invited him to come to a Ku Klux
Klan "rally" to be held at a farm in Hamilton County. With the
cooperation of the organizers, the reporter and a cameraman
attended the meeting and filmed the events. Portions of the films
were later broadcast on the local station and on a national
network.

															The prosecution's case rested on the films and on testimony
identifying the appellant as the person who communicated with the
reporter and who spoke at the rally. The State also introduced into
evidence several articles appearing in the film, including a
pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood
worn by the speaker in the films.

															One film showed 12 hooded figures, some of whom carried
firearms. They were gathered around a large wooden cross, which
they burned. No one was present Page 395 U. S. 446 other than the participants and the newsmen who made the film.
Most of the words uttered during the scene were incomprehensible
when the film was projected, but scattered phrases could be
understood that were derogatory of Negroes and, in one instance, of
Jews. [ Footnote 1 ] Another
scene on the same film showed the appellant, in Klan regalia,
making a speech. The speech, in full, was as follows:

															"This is an organizers' meeting. We have had quite a few members
here today which are -- we have hundreds, hundreds of members
throughout the State of Ohio. I can quote from a newspaper clipping
from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning.
The Klan has more members in the State of Ohio than does any other
organization. We're not a revengent organization, but if our
President, our Congress, our Supreme Court, continues to suppress
the white, Caucasian race, it's possible that there might have to
be some revengeance taken."

															"We are marching on Congress July the Fourth, four hundred
thousand strong. From there, we are dividing into two groups, one
group to march on St. Augustine, Florida, the other group to march
into Mississippi. Thank you. " Page 395 U. S. 447 The second film showed six hooded figures one of whom, later
identified as the appellant, repeated a speech very similar to that
recorded on the first film. The reference to the possibility of
"revengeance" was omitted, and one sentence was added: "Personally,
I believe the nigger should be returned to Africa, the Jew returned
to Israel." Though some of the figures in the films carried
weapons, the speaker did not.

															The Ohio Criminal Syndicalism Statute was enacted in 1919. From
1917 to 1920, identical or quite similar laws were adopted by 20
States and two territories. E. Dowell, A History of Criminal
Syndicalism Legislation in the United States 21 (1939). In 1927,
this Court sustained the constitutionality of California's Criminal
Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which
is quite similar to that of the laws of Ohio. Whitney v.
California, 274 U. S. 357 (1927). The Court upheld the statute on the ground that, without
more, "advocating" violent means to effect political and economic
change involves such danger to the security of the State that the
State may outlaw it. Cf. Fiske v. Kansas, 274 U.
S. 380 (1927). But Whitney has been thoroughly
discredited by later decisions. See Dennis v. United
States, 341 U. S. 494 , at 341 U. S. 507 (1951). These later decisions have fashioned the principle that the
constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action. [ Footnote 2 ] As we Page 395 U. S. 448 said in Noto v. United States, 367 U.
S. 290 , 367 U. S.
297 -298 (1961),

															"the mere abstract teaching . . . of the moral propriety or even
moral necessity for a resort to force and violence is not the same
as preparing a group for violent action and steeling it to such
action." See also Herndon v. Lowry, 301 U.
S. 242 , 301 U. S.
259 -261 (1937); Bond v. Floyd, 385 U.
S. 116 , 385 U. S. 134 (1966). A statute which fails to draw this distinction
impermissibly intrudes upon the freedoms guaranteed by the First
and Fourteenth Amendments. It sweeps within its condemnation speech
which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.
S. 298 (1957); De Jonge v. Oregon, 299 U.
S. 353 (1937); Stromberg v. California, 283 U. S. 359 (1931). See also United States v. Robel, 389 U.
S. 258 (1967); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Elfbrandt v. Russell, 384 U. S.
11 (1966); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Baggett v. Bullitt, 377 U.
S. 360 (1964).

															Measured by this test, Ohio's Criminal Syndicalism Act cannot be
sustained. The Act punishes persons who "advocate or teach the
duty, necessity, or propriety" of violence "as a means of
accomplishing industrial or political reform"; or who publish or
circulate or display any book or paper containing such advocacy; or
who "justify" the commission of violent acts "with intent to
exemplify, spread or advocate the propriety of the doctrines of
criminal syndicalism"; or who "voluntarily assemble" with a group
formed "to teach or advocate the doctrines of criminal
syndicalism." Neither the indictment nor the trial judge's
instructions to the jury in any way refined the statute's bald
definition of the crime Page 395 U. S. 449 in terms of mere advocacy not distinguished from incitement to
imminent lawless action. [ Footnote
3 ]

															Accordingly, we are here confronted with a statute which, by its
own words and as applied, purports to punish mere advocacy and to
forbid, on pain of criminal punishment, assembly with others merely
to advocate the described type of action. [ Footnote 4 ] Such a statute falls within the
condemnation of the First and Fourteenth Amendments. The contrary
teaching of Whitney v. California, supra, cannot be
supported, and that decision is therefore overruled. Reversed. [ Footnote 1 ]

															The significant portions that could be understood were:

															"How far is the nigger going to -- yeah."

															"This is what we are going to do to the niggers."

															"A dirty nigger."

															"Send the Jews back to Israel."

															"Let's give them back to the dark garden."

															"Save America."

															"Let's go back to constitutional betterment."

															"Bury the niggers."

															"We intend to do our part."

															"Give us our state rights."

															"Freedom for the whites."

															"Nigger will have to fight for every inch he gets from now
on."

															[ Footnote 2 ]

															It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C.
§ 35, embodied such a principle and that it had been applied only
in conformity with it that this Court sustained the Act's
constitutionality. Dennis v. United States, 341 U.
S. 494 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U. S. 298 , 354 U. S.
320 -324 (1957), in which the Court overturned
convictions for advocacy of the forcible overthrow of the
Government under the Smith Act, because the trial judge's
instructions had allowed conviction for mere advocacy, unrelated to
its tendency to produce forcible action.

															[ Footnote 3 ]

															The first count of the indictment charged that appellant

															"did unlawfully by word of mouth advocate the necessity, or
propriety of crime, violence, or unlawful methods of terrorism as a
means of accomplishing political reform. . . ."

															The second count charged that appellant "did unlawfully
voluntarily assemble with a group or assemblage of persons formed
to advocate the doctrines of criminal syndicalism. . . ." The trial
judge's charge merely followed the language of the indictment. No
construction of the statute by the Ohio courts has brought it
within constitutionally permissible limits. The Ohio Supreme Court
has considered the statute in only one previous case, State v.
Kassay, 126 Ohio St. 177, 184 N.E. 521 (1932), where the
constitutionality of the statute was sustained.

															[ Footnote 4 ]

															Statutes affecting the right of assembly, like those touching on
freedom of speech, must observe the established distinctions
between mere advocacy and incitement to imminent lawless action,
for, as Chief Justice Hughes wrote in De Jonge v. Oregon,
supra, at 299 U. S. 364 :
"The right of peaceable assembly is a right cognate to those of
free speech and free press, and is equally fundamental." See
also United States v. Cruikshank, 92 U. S.
542 , 92 U. S. 552 (1876); Hague v. CIO, 307 U. S. 496 , 307 U. S. 513 , 307 U. S. 519 (1939); NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449 , 357 U. S.
460 -461 (1958).

															MR. JUSTICE BLACK, concurring.

															I agree with the views expressed by MR. JUSTICE DOUGLAS in his
concurring opinion in this case that the "clear and present danger"
doctrine should have no place Page 395 U. S. 450 in the interpretation of the First Amendment. I join the Court's
opinion, which, as I understand it, simply cites Dennis v.
United States, 341 U. S. 494 (1951), but does not indicate any agreement on the Court's part
with the "clear and present danger" doctrine on which Dennis purported to rely.

															MR. JUSTICE DOUGLAS, concurring.

															While I join the opinion of the Court, I desire to enter a caveat. The "clear and present danger" test was adumbrated by Mr.
Justice Holmes in a case arising during World War I -- a war
"declared" by the Congress, not by the Chief Executive. The case
was Schenck v. United States, 249 U. S.
47 , 249 U. S. 52 ,
where the defendant was charged with attempts to cause
insubordination in the military and obstruction of enlistment. The
pamphlets that were distributed urged resistance to the draft,
denounced conscription, and impugned the motives of those backing
the war effort. The First Amendment was tendered as a defense. Mr.
Justice Holmes, in rejecting that defense, said:

															"The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of proximity
and degree." Frohwerk v. United States, 249 U.
S. 204 , also authored by Mr. Justice Holmes, involved
prosecution and punishment for publication of articles very
critical of the war effort in World War I. Schenck was
referred to as a conviction for obstructing security "by words of
persuasion." Id. at 249 U. S. 206 .
And the conviction in Frohwerk was sustained because "the
circulation of the paper was Page 395 U. S. 451 in quarters where a little breath would be enough to kindle a
flame." Id. at 249 U. S.
209 . Debs v. United States, 249 U.
S. 211 , was the third of the trilogy of the 1918 Term.
Debs was convicted of speaking in opposition to the war where his
"opposition was so expressed that its natural and intended effect
would be to obstruct recruiting." Id. at 249 U. S.
215 .

															"If that was intended, and if, in all the circumstances, that
would be its probable effect, it would not be protected by reason
of its being part of a general program and expressions of a general
and conscientious belief." Ibid. In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War
I. Abrams v. United States, 250 U.
S. 616 , was one instance. Mr. Justice Holmes, with whom
Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that, on the facts, a case for
overriding the First Amendment had been made out:

															"It is only the present danger of immediate evil or an intent to
bring it about that warrants Congress in setting a limit to the
expression of opinion where private rights are not concerned.
Congress certainly cannot forbid all effort to change the mind of
the country." Id. at 250 U. S.
628 .

															Another instance was Schaefer v. United States, 251 U. S. 466 , in
which Mr. Justice Brandeis, joined by Mr. Justice Holmes,
dissented. A third was Pierce v. United States, 252 U. S. 239 , in
which, again, Mr. Justice Brandeis, joined by Mr. Justice Holmes,
dissented.

															Those, then, were the World War I cases that put the gloss of
"clear and present danger" on the First Amendment. Whether the war
power -- the greatest leveler of them all -- is adequate to sustain
that doctrine is debatable. Page 395 U. S. 452 The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush
what Brandeis called "[t]he fundamental right of free men to strive
for better conditions through new legislation and new institutions"
by argument and discourse ( Pierce v. United States, supra, at 252 U. S. 273 )
even in time of war. Though I doubt if the "clear and present
danger" test is congenial to the First Amendment in time of a
declared war, I am certain it is not reconcilable with the First
Amendment in days of peace.

															The Court quite properly overrules Whitney v.
California, 274 U. S. 357 ,
which involved advocacy of ideas which the majority of the Court
deemed unsound and dangerous.

															Mr. Justice Holmes, though never formally abandoning the "clear
and present danger" test, moved closer to the First Amendment ideal
when he said in dissent in Gitlow v. New York, 268 U. S. 652 , 268 U. S.
673 :

															"Every idea is an incitement. It offers itself for belief, and,
if believed, it is acted on unless some other belief outweighs it
or some failure of energy stifles the movement at its birth. The
only difference between the expression of an opinion and an
incitement in the narrower sense is the speaker's enthusiasm for
the result. Eloquence may set fire to reason. But whatever may be
thought of the redundant discourse before us, it had no chance of
starting a present conflagration. If, in the long run, the beliefs
expressed in proletarian dictatorship are destined to be accepted
by the dominant forces of the community, the only meaning of free
speech is that they should be given their chance and have their
way."

															We have never been faithful to the philosophy of that
dissent. Page 395 U. S. 453 The Court, in Herndon v. Lowry, 301 U.
S. 242 , overturned a conviction for exercising First
Amendment rights to incite insurrection because of lack of evidence
of incitement. Id. at 301 U. S.
259 -261. And see Hartzel v. United States, 322 U. S. 680 . In Bridges v. California, 314 U. S. 252 , 314 U. S.
261 -263, we approved the "clear and present danger" test
in an elaborate dictum that tightened it and confined it to a
narrow category. But in Dennis v. United States, 341 U. S. 494 , we
opened wide the door, distorting the "clear and present danger"
test beyond recognition. [ Footnote
2/1 ]

															In that case, the prosecution dubbed an agreement to teach the
Marxist creed a "conspiracy." The case was submitted to a jury on a
charge that the jury could not convict unless it found that the
defendants "intended to overthrow the Government as speedily as
circumstances would permit.'" Id. at 341 U. S.
509 -511. The Court sustained convictions under that
charge, construing it to mean a determination of

															""whether the gravity of the evil,' discounted by its
improbability, justifies such invasion of free speech as is
necessary to avoid the danger." [ Footnote 2/2 ]" Id. at 341 U. S. 510 ,
quoting from United States v. Dennis, 183 F.2d 201,
212.

															Out of the "clear and present danger" test came other offspring.
Advocacy and teaching of forcible overthrow of government as an
abstract principle is immune from prosecution. Yates v. United
States, 354 U. S. 298 , 354 U. S. 318 .
But an "active" member, who has a guilty knowledge and intent of
the aim to overthrow the Government Page 395 U. S. 454 by violence, Noto v. United States, 367 U.
S. 290 , may be prosecuted. Scales v. United
States, 367 U. S. 203 , 367 U. S. 228 .
And the power to investigate, backed by the powerful sanction of
contempt, includes the power to determine which of the two
categories fits the particular witness. Barenblatt v. United
States, 360 U. S. 109 , 360 U. S. 130 .
And so the investigator roams at will through all of the beliefs of
the witness, ransacking his conscience and his innermost
thoughts.

															Judge Learned Hand, who wrote for the Court of Appeals in
affirming the judgment in Dennis, coined the "not
improbable" test, 183 F.2d 201, 214, which this Court adopted and
which Judge Hand preferred over the "clear and present danger"
test. Indeed, in his book, The Bill of Rights 59 (1958), in
referring to Holmes' creation of the "clear and present danger"
test, he said, "I cannot help thinking that, for once, Homer
nodded."

															My own view is quite different. I see no place in the regime of
the First Amendment for any "clear and present danger" test,
whether strict and tight, as some would make it, or free-wheeling,
as the Court in Dennis rephrased it.

															When one reads the opinions closely and sees when and how the
"clear and present danger" test has been applied, great misgivings
are aroused. First, the threats were often loud, but always puny,
and made serious only by judges so wedded to the status
quo that critical analysis made them nervous. Second, the test
was so twisted and perverted in Dennis as to make the
trial of those teachers of Marxism an all-out political trial which
was part and parcel of the cold war that has eroded substantial
parts of the First Amendment.

															Action is often a method of expression, and within the
protection of the First Amendment.

															Suppose one tears up his own copy of the Constitution in
eloquent protest to a decision of this Court. May he be
indicted? Page 395 U. S. 455 Suppose one rips his own Bible to shreds to celebrate his
departure from one "faith" and his embrace of atheism. May he be
indicted?

															Last Term, the Court held in United States v. O'Brien, 391 U. S. 367 , 391 U. S. 382 ,
that a registrant under Selective Service who burned his draft card
in protest of the war in Vietnam could be prosecuted. The First
Amendment was tendered as a defense and rejected, the Court
saying:

															"The issuance of certificates indicating the registration and
eligibility classification of individuals is a legitimate and
substantial administrative aid in the functioning of this system.
And legislation to insure the continuing availability of issued
certificates serves a legitimate and substantial purpose in the
system's administration."

															391 U.S. at 391 U. S.
377 -378.

															But O'Brien was not prosecuted for not having his draft card
available when asked for by a federal agent. He was indicted,
tried, and convicted for burning the card. And this Court's
affirmance of that conviction was not, with all respect, consistent
with the First Amendment.

															The act of praying often involves body posture and movement, as
well as utterances. It is nonetheless protected by the Free
Exercise Clause. Picketing, as we have said on numerous occasions,
is "free speech plus." See Bakery Drivers Local v. Wohl, 315 U. S. 769 , 315 U. S. 775 (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U. S. 490 , 336 U. S. 501 ; Hughes v. Superior Court, 339 U.
S. 460 , 339 U. S. 465 ; Labor Board v. Fruit Packers, 377 U. S.
58 , 377 U. S. 77 (BLACK, J., concurring), and id. at 377 U.S. 93 (HARLAN, J., dissenting); Cox v. Louisiana, 379 U. S. 559 , 379 U. S. 578 (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U. S. 308 , 391 U. S. 326 (DOUGLAS, J., concurring). That means that it can be regulated when
it comes to the "plus" or "action" side of the protest. It can be
regulated as to Page 395 U. S. 456 the number of pickets and the place and hours ( see Cox v.
Louisiana, supra ), because traffic and other community
problems would otherwise suffer.

															But none of these considerations is implicated in the symbolic
protest of the Vietnam war in the burning of a draft card.

															One's beliefs have long been thought to be sanctuaries which
government could not invade. Barenblatt is one example of
the ease with which that sanctuary can be violated. The lines drawn
by the Court between the criminal act of being an "active"
Communist and the innocent act of being a nominal or inactive
Communist mark the difference only between deep and abiding belief
and casual or uncertain belief. But I think that all matters of
belief are beyond the reach of subpoenas or the probings of
investigators. That is why the invasions of privacy made by
investigating committees were notoriously unconstitutional. That is
the deep-seated fault in the infamous loyalty security hearings
which, since 1947, when President Truman launched them, have
processed 20,000,000 men and women. Those hearings were primarily
concerned with one's thoughts, ideas, beliefs, and convictions.
They were the most blatant violations of the First Amendment we
have ever known.

															The line between what is permissible and not subject to control
and what may be made impermissible and subject to regulation is the
line between ideas and overt acts.

															The example usually given by those who would punish speech is
the case of one who falsely shouts fire in a crowded theatre.

															This is, however, a classic case where speech is brigaded with
action. See Speiser v. Randall, 357 U.
S. 513 , 357 U. S.
536 -537 (DOUGLAS, J., concurring). They are indeed
inseparable, and a prosecution can be launched for the overt Page 395 U. S. 457 acts actually caused. Apart from rare instances of that kind,
speech is, I think, immune from prosecution. Certainly there is no
constitutional line between advocacy of abstract ideas, as in Yates, and advocacy of political action, as in Scales. The quality of advocacy turns on the depth of the
conviction, and government has no power to invade that sanctuary of
belief and conscience. [ Footnote
2/3 ]

															[ Footnote 2/1 ] See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev.
1182, 1203-1212 (1959).

															[ Footnote 2/2 ] See Feiner v. New York, 340 U.
S. 315 , where a speaker was arrested for arousing an
audience when the only "clear and present danger" was that the
hecklers in the audience would break up the meeting.

															[ Footnote 2/3 ] See MR. JUSTICE BLACK, dissenting, in Communications Assn. v. Douds, 339 U.
S. 382 , 339 U. S. 446 , 339 U. S. 449 et seq.


U.S. Supreme Court Tinker v. Des Moines Sch. Dist., 393
U.S. 503 (1969) Tinker v. Des Moines Independent Community School
District No. 21 Argued November 12, 1968 Decided February 24, 1969 393
U.S. 503 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MR. JUSTICE FORTAS delivered the opinion of the Court.

															Petitioner John F. Tinker, 15 years old, and petitioner
Christopher Eckhardt, 16 years old, attended high schools in Des
Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a
13-year-old student in junior high school.

															In December, 1965, a group of adults and students in Des Moines
held a meeting at the Eckhardt home. The group determined to
publicize their objections to the hostilities in Vietnam and their
support for a truce by wearing black armbands during the holiday
season and by fasting on December 16 and New Year's Eve.
Petitioners and their parents had previously engaged in similar
activities, and they decided to participate in the program.

															The principals of the Des Moines schools became aware of the
plan to wear armbands. On December 14, 1965, they met and adopted a
policy that any student wearing an armband to school would be asked
to remove it, and, if he refused, he would be suspended until he
returned without the armband. Petitioners were aware of the
regulation that the school authorities adopted.

															On December 16, Mary Beth and Christopher wore black armbands to
their schools. John Tinker wore his armband the next day. They were
all sent home and suspended from school until they would come back
without their armbands. They did not return to school until after
the planned period for wearing armbands had expired -- that is,
until after New Year's Day.

															This complaint was filed in the United States District Court by
petitioners, through their fathers, under § 1983 of Title 42 of the
United States Code. It prayed for an injunction restraining the
respondent school officials and the respondent members of the board
of directors of the school district from disciplining the
petitioners, and it sought nominal damages. After an evidentiary
hearing, the District Court dismissed the complaint. It upheld [505 ]

															the constitutionality of the school authorities' action on the
ground that it was reasonable in order to prevent disturbance of
school discipline. 258 F.
Supp. 971 (1966). The court referred to, but expressly declined
to follow, the Fifth Circuit's holding in a similar case that the
wearing of symbols like the armbands cannot be prohibited unless it
"materially and substantially interfere[s] with the requirements of
appropriate discipline in the operation of the school." Burnside v. Byars , 363 F.2d 744, 749 (1966). [ Footnote 1 ]

															On appeal, the Court of Appeals for the Eighth Circuit
considered the case en banc. The court was equally divided, and the
District Court's decision was accordingly affirmed without opinion.
383 F.2d 988 (1967). We granted certiorari. 390 U.S. 942
(1968). I The District Court recognized that the wearing of an armband for
the purpose of expressing certain views is the type of symbolic act
that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette , 319 U. S. 624 (1943); Stromberg v. California , 283 U. S. 359 (1931). Cf. Thornhill v. Alabama , 310 U. S. 88 (1940); Edwards v. South Carolina , 372 U. S. 229 (1963); Brown v. Louisiana , 383 U. S. 131 (1966). As
we shall discuss, the wearing of armbands in the circumstances of
this case was entirely divorced from actually or potentially
disruptive conduct by those participating in it. It was closely
akin to "pure speech" [506 ]

															which, we have repeatedly held, is entitled to comprehensive
protection under the First Amendment. Cf. Cox v.
Louisiana , 379
U. S. 536 , 555 (1965); Adderley v. Florida , 385 U. S. 39 (1966).

															First Amendment rights, applied in light of the special
characteristics of the school environment, are available to
teachers and students. It can hardly be argued that either students
or teachers shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska , 262 U. S. 390 (1923), and Bartels v. Iowa , 262 U. S. 404 (1923),
this Court, in opinions by Mr. Justice McReynolds, held that the
Due Process Clause of the Fourteenth Amendment prevents States from
forbidding the teaching of a foreign language to young students.
Statutes to this effect, the Court held, unconstitutionally
interfere with the liberty of teacher, student, and parent. [ Footnote 2 ] See also Pierce v. Society of
Sisters , 268 [507 ]

															U.S. 510 (1925); West Virginia v. Barnette , 319 U. S. 624 (1943); McCollum v. Board of Education , 333 U. S. 203 (1948); Wieman v. Updegraff , 344 U. S. 183 , 195 (1952)
(concurring opinion); Sweezy v. New Hampshire , 354 U. S. 234 (1957); Shelton v. Tucker , 364 U. S. 479 , 487
(1960); Engel v. Vitale , 370 U. S. 421 (1962); Keyishian v. Board of Regents , 385 U. S. 589 , 603
(1967); Epperson v. Arkansas, ante , p. 97 (1968).

															In West Virginia v. Barnette, supra , this Court held
that, under the First Amendment, the student in public school may
not be compelled to salute the flag. Speaking through Mr. Justice
Jackson, the Court said: "The Fourteenth Amendment, as now applied to the States,
protects the citizen against the State itself and all of its
creatures -- Boards of Education not excepted. These have, of
course, important, delicate, and highly discretionary functions,
but none that they may not perform within the limits of the Bill of
Rights. That they are educating the young for citizenship is reason
for scrupulous protection of Constitutional freedoms of the
individual, if we are not to strangle the free mind at its source
and teach youth to discount important principles of our government
as mere platitudes."319 U.S. at 637. On the other hand, the Court has repeatedly emphasized the need
for affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra , at 104; Meyer v.
Nebraska, supra , at 402. Our problem lies in the area where
students in the exercise of First Amendment rights collide with the
rules of the school authorities. II The problem posed by the present case does not relate to
regulation of the length of skirts or the type of clothing, [508 ]

															to hair style, or deportment. Cf. Ferrell v. Dallas
Independent School District , 392 F.2d 697 (1968); Pugsley
v. Sellmeyer , 158 Ark. 247, 250 S.W. 538 (1923). It does not
concern aggressive, disruptive action or even group demonstrations.
Our problem involves direct, primary First Amendment rights akin to
"pure speech."

															The school officials banned and sought to punish petitioners for
a silent, passive expression of opinion, unaccompanied by any
disorder or disturbance on the part of petitioners. There is here
no evidence whatever of petitioners' interference, actual or
nascent, with the schools' work or of collision with the rights of
other students to be secure and to be let alone. Accordingly, this
case does not concern speech or action that intrudes upon the work
of the schools or the rights of other students.

															Only a few of the 18,000 students in the school system wore the
black armbands. Only five students were suspended for wearing them.
There is no indication that the work of the schools or any class
was disrupted. Outside the classrooms, a few students made hostile
remarks to the children wearing armbands, but there were no threats
or acts of violence on school premises.

															The District Court concluded that the action of the school
authorities was reasonable because it was based upon their fear of
a disturbance from the wearing of the armbands. But, in our system,
undifferentiated fear or apprehension of disturbance is not enough
to overcome the right to freedom of expression. Any departure from
absolute regimentation may cause trouble. Any variation from the
majority's opinion may inspire fear. Any word spoken, in class, in
the lunchroom, or on the campus, that deviates from the views of
another person may start an argument or cause a disturbance. But
our Constitution says we must take this risk, Terminiello v.
Chicago , 337 U. S.
1 (1949); and our history says that it is this sort of
hazardous freedom -- this kind of openness -- that is [509 ]

															the basis of our national strength and of the independence and
vigor of Americans who grow up and live in this relatively
permissive, often disputatious, society.

															In order for the State in the person of school officials to
justify prohibition of a particular expression of opinion, it must
be able to show that its action was caused by something more than a
mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint. Certainly where there is no
finding and no showing that engaging in the forbidden conduct would
"materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school," the
prohibition cannot be sustained. Burnside v. Byars, supra at 749.

															In the present case, the District Court made no such finding,
and our independent examination of the record fails to yield
evidence that the school authorities had reason to anticipate that
the wearing of the armbands would substantially interfere with the
work of the school or impinge upon the rights of other students.
Even an official memorandum prepared after the suspension that
listed the reasons for the ban on wearing the armbands made no
reference to the anticipation of such disruption. [ Footnote 3 ] [510 ]

															On the contrary, the action of the school authorities appears to
have been based upon an urgent wish to avoid the controversy which
might result from the expression, even by the silent symbol of
armbands, of opposition to this Nation's part in the conflagration
in Vietnam. [ Footnote 4 ] It is
revealing, in this respect, that the meeting at which the school
principals decided to issue the contested regulation was called in
response to a student's statement to the journalism teacher in one
of the schools that he wanted to write an article on Vietnam and
have it published in the school paper. (The student was dissuaded.
[ Footnote 5 ])

															It is also relevant that the school authorities did not purport
to prohibit the wearing of all symbols of political or
controversial significance. The record shows that students in some
of the schools wore buttons relating to national political
campaigns, and some even wore the Iron Cross, traditionally a
symbol of Nazism. The order prohibiting the wearing of armbands did
not extend to these. Instead, a particular symbol -- black armbands
worn to exhibit opposition to this Nation's involvement [511 ]

															in Vietnam -- was singled out for prohibition. Clearly, the
prohibition of expression of one particular opinion, at least
without evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline, is not
constitutionally permissible.

															In our system, state-operated schools may not be enclaves of
totalitarianism. School officials do not possess absolute authority
over their students. Students in school, as well as out of school,
are "persons" under our Constitution. They are possessed of
fundamental rights which the State must respect, just as they
themselves must respect their obligations to the State. In our
system, students may not be regarded as closed-circuit recipients
of only that which the State chooses to communicate. They may not
be confined to the expression of those sentiments that are
officially approved. In the absence of a specific showing of
constitutionally valid reasons to regulate their speech, students
are entitled to freedom of expression of their views. As Judge
Gewin, speaking for the Fifth Circuit, said, school officials
cannot suppress "expressions of feelings with which they do not
wish to contend." Burnside v. Byars, supra , at 749.

															In Meyer v. Nebraska, supra , at 402, Mr. Justice
McReynolds expressed this Nation's repudiation of the principle
that a State might so conduct its schools as to "foster a
homogeneous people." He said: "In order to submerge the individual and develop ideal citizens,
Sparta assembled the males at seven into barracks and intrusted
their subsequent education and training to official guardians.
Although such measures have been deliberately approved by men of
great genius, their ideas touching the relation between individual
and State were wholly different from those upon which our
institutions rest; and it hardly will be affirmed that any
legislature could impose such restrictions upon the people of a [512 ] State without doing violence to both letter and spirit of the
Constitution." This principle has been repeated by this Court on numerous
occasions during the intervening years. In Keyishian v. Board
of Regents , 385
U. S. 589 , 603, MR. JUSTICE BRENNAN, speaking for the Court,
said: "'The vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools.' Shelton
v. Tucker , [ 364 U.S.
479 ,] at 487. The classroom is peculiarly the 'marketplace of
ideas.' The Nation's future depends upon leaders trained through
wide exposure to that robust exchange of ideas which discovers
truth 'out of a multitude of tongues, [rather] than through any
kind of authoritative selection.'" The principle of these cases is not confined to the supervised
and ordained discussion which takes place in the classroom. The
principal use to which the schools are dedicated is to accommodate
students during prescribed hours for the purpose of certain types
of activities. Among those activities is personal
intercommunication among the students. [ Footnote 6 ] This is not only an inevitable part of the
process of attending school; it is also an important part of the
educational process. A student's rights, therefore, do not embrace
merely the classroom hours. When he is in the cafeteria, or on the
playing field, or on [513 ]

															the campus during the authorized hours, he may express his
opinions, even on controversial subjects like the conflict in
Vietnam, if he does so without "materially and substantially
interfer[ing] with the requirements of appropriate discipline in
the operation of the school" and without colliding with the rights
of others. Burnside v. Byars, supra , at 749. But conduct
by the student, in class or out of it, which for any reason --
whether it stems from time, place, or type of behavior --
materially disrupts classwork or involves substantial disorder or
invasion of the rights of others is, of course, not immunized by
the constitutional guarantee of freedom of speech. Cf.
Blackwell v. Issaquena County Board of Education. , 363 F.2d
740 (C.A. 5th Cir.1966).

															Under our Constitution, free speech is not a right that is given
only to be so circumscribed that it exists in principle, but not in
fact. Freedom of expression would not truly exist if the right
could be exercised only in an area that a benevolent government has
provided as a safe haven for crackpots. The Constitution says that
Congress (and the States) may not abridge the right to free speech.
This provision means what it says. We properly read it to permit
reasonable regulation of speech-connected activities in carefully
restricted circumstances. But we do not confine the permissible
exercise of First Amendment rights to a telephone booth or the four
corners of a pamphlet, or to supervised and ordained discussion in
a school classroom.

															If a regulation were adopted by school officials forbidding
discussion of the Vietnam conflict, or the expression by any
student of opposition to it anywhere on school property except as
part of a prescribed classroom exercise, it would be obvious that
the regulation would violate the constitutional rights of students,
at least if it could not be justified by a showing that the
students' activities would materially and substantially disrupt the
work and discipline of the school. Cf. Hammond [514 ] v. South Carolina State College , 272 F.
Supp. 947 (D.C.S.C.1967) (orderly protest meeting on state
college campus); Dickey v. Alabama State Board of
Education , 273 F.
Supp. 613 (D.C.M.D. Ala. 967) (expulsion of student editor of
college newspaper). In the circumstances of the present case, the
prohibition of the silent, passive "witness of the armbands," as
one of the children called it, is no less offensive to the
Constitution's guarantees.

															As we have discussed, the record does not demonstrate any facts
which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities, and no disturbances or disorders on the school premises
in fact occurred. These petitioners merely went about their
ordained rounds in school. Their deviation consisted only in
wearing on their sleeve a band of black cloth, not more than two
inches wide. They wore it to exhibit their disapproval of the
Vietnam hostilities and their advocacy of a truce, to make their
views known, and, by their example, to influence others to adopt
them. They neither interrupted school activities nor sought to
intrude in the school affairs or the lives of others. They caused
discussion outside of the classrooms, but no interference with work
and no disorder. In the circumstances, our Constitution does not
permit officials of the State to deny their form of expression.

															We express no opinion as to the form of relief which should be
granted, this being a matter for the lower courts to determine. We
reverse and remand for further proceedings consistent with this
opinion. Reversed and remanded. MR. JUSTICE STEWART, concurring.

															Although I agree with much of what is said in the Court's
opinion, and with its judgment in this case, I [515 ]

															cannot share the Court's uncritical assumption that, school
discipline aside, the First Amendment rights of children are
coextensive with those of adults. Indeed, I had thought the Court
decided otherwise just last Term in Ginsberg v. New York , 390 U. S. 629 . I
continue to hold the view I expressed in that case:

															"[A] State may permissibly determine that, at least in some
precisely delineated areas, a child -- like someone in a captive
audience -- is not possessed of that full capacity for individual
choice which is the presupposition of First Amendment guarantees." Id. at 649-650 (concurring in result). Cf. Prince v.
Massachusetts , 321 U. S. 158 .

															MR. JUSTICE WHITE, concurring.

															While I join the Court's opinion, I deem it appropriate to note,
first, that the Court continues to recognize a distinction between
communicating by words and communicating by acts or conduct which
sufficiently impinges on some valid state interest; and, second,
that I do not subscribe to everything the Court of Appeals said
about free speech in its opinion in Burnside v. Byars , 363
F.2d 744, 748 (C.A. 5th Cir.1966), a case relied upon by the Court
in the matter now before us.

															MR. JUSTICE BLACK, dissenting.

															The Court's holding in this case ushers in what I deem to be an
entirely new era in which the power to control pupils by the
elected "officials of state supported public schools . . ." in the
United States is in ultimate effect transferred to the Supreme
Court. [ Footnote 1 ] The
Court brought [516 ]

															this particular case here on a petition for certiorari urging
that the First and Fourteenth Amendments protect the right of
school pupils to express their political views all the way "from
kindergarten through high school." Here, the constitutional right
to "political expression" asserted was a right to wear black
armbands during school hours and at classes in order to demonstrate
to the other students that the petitioners were mourning because of
the death of United States soldiers in Vietnam and to protest that
war which they were against. Ordered to refrain from wearing the
armbands in school by the elected school officials and the teachers
vested with state authority to do so, apparently only seven out of
the school system's 18,000 pupils deliberately refused to obey the
order. One defying pupil was Paul Tinker, 8 years old, who was in
the second grade; another, Hope Tinker, was 11 years old and in the
fifth grade; a third member of the Tinker family was 13, in the
eighth grade; and a fourth member of the same family was John
Tinker, 15 years old, an 11th grade high school pupil. Their
father, a Methodist minister without a church, is paid a salary by
the American Friends Service Committee. Another student who defied
the school order and insisted on wearing an armband in school was
Christopher Eckhardt, an 11th grade pupil and a petitioner in this
case. His mother is an official in the Women's International League
for Peace and Freedom.

															As I read the Court's opinion, it relies upon the following
grounds for holding unconstitutional the judgment of the Des Moines
school officials and the two courts below. First, the Court
concludes that the wearing of armbands is "symbolic speech," which
is "akin to pure speech,'" and therefore protected by the First
and Fourteenth Amendments. Secondly, the Court decides that the
public schools are an appropriate place to exercise "symbolic
speech" as long as normal school functions [517 ] are not "unreasonably" disrupted. Finally, the Court
arrogates to itself, rather than to the State's elected officials
charged with running the schools, the decision as to which school
disciplinary regulations are "reasonable." Assuming that the Court is correct in holding that the conduct
of wearing armbands for the purpose of conveying political ideas is
protected by the First Amendment, cf., e.g., Giboney v. Empire
Storage & Ice Co. , 336 U. S. 490 (1949), the
crucial remaining questions are whether students and teachers may
use the schools at their whim as a platform for the exercise of
free speech -- "symbolic" or "pure" -- and whether the courts will
allocate to themselves the function of deciding how the pupils'
school day will be spent. While I have always believed that, under
the First and Fourteenth Amendments, neither the State nor the
Federal Government has any authority to regulate or censor the
content of speech, I have never believed that any person has a
right to give speeches or engage in demonstrations where he pleases
and when he pleases. This Court has already rejected such a notion.
In Cox v. Louisiana , 379 U. S. 536 , 554
(1965), for example, the Court clearly stated that the rights of
free speech and assembly "do not mean that everyone with opinions
or beliefs to express may address a group at any public place and
at any time."

															While the record does not show that any of these armband
students shouted, used profane language, or were violent in any
manner, detailed testimony by some of them shows their armbands
caused comments, warnings by other students, the poking of fun at
them, and a warning by an older football player that other
nonprotesting students had better let them alone. There is also
evidence that a teacher of mathematics had his lesson period
practically "wrecked," chiefly by disputes with Mary Beth Tinker,
who wore her armband for her "demonstration." [518 ]

															Even a casual reading of the record shows that this armband did
divert students' minds from their regular lessons, and that talk,
comments, etc., made John Tinker "self-conscious" in attending
school with his armband. While the absence of obscene remarks or
boisterous and loud disorder perhaps justifies the Court's
statement that the few armband students did not actually "disrupt"
the classwork, I think the record overwhelmingly shows that the
armbands did exactly what the elected school officials and
principals foresaw they would, that is, took the students' minds
off their classwork and diverted them to thoughts about the highly
emotional subject of the Vietnam war. And I repeat that, if the
time has come when pupils of state-supported schools,
kindergartens, grammar schools, or high schools, can defy and flout
orders of school officials to keep their minds on their own
schoolwork, it is the beginning of a new revolutionary era of
permissiveness in this country fostered by the judiciary. The next
logical step, it appears to me, would be to hold unconstitutional
laws that bar pupils under 21 or 18 from voting, or from being
elected members of the boards of education. [ Footnote 2 ]

															The United States District Court refused to hold that the state
school order violated the First and Fourteenth Amendments. 258 F.
Supp. 971 . Holding that the protest was akin to speech, which
is protected by the First [519 ]

															and Fourteenth Amendments, that court held that the school order
was "reasonable," and hence constitutional. There was at one time a
line of cases holding "reasonableness," as the court saw it, to be
the test of a "due process" violation. Two cases upon which the
Court today heavily relies for striking down this school order used
this test of reasonableness, Meyer v. Nebraska , 262 U. S. 390 (1923), and Bartels v. Iowa , 262 U. S. 404 (1923). The
opinions in both cases were written by Mr. Justice McReynolds; Mr.
Justice Holmes, who opposed this reasonableness test, dissented
from the holdings, as did Mr. Justice Sutherland. This
constitutional test of reasonableness prevailed in this Court for a
season. It was this test that brought on President Franklin
Roosevelt's well known Court fight. His proposed legislation did
not pass, but the fight left the "reasonableness" constitutional
test dead on the battlefield, so much so that this Court, in Ferguson v. Skrupa , 372 U. S. 726 , 729, 730,
after a thorough review of the old cases, was able to conclude in
1963: "There was a time when the Due Process Clause was used by this
Court to strike down laws which were thought unreasonable, that is,
unwise or incompatible with some particular economic or social
philosophy." * * * * "The doctrine that prevailed in Lochner, Coppage, Adkins,
Burns , and like cases -- that due process authorizes courts to
hold laws unconstitutional when they believe the legislature has
acted unwisely -- has long since been discarded." The Ferguson case totally repudiated the old
reasonableness-due process test, the doctrine that judges have the
power to hold laws unconstitutional upon the belief of judges that
they "shock the conscience," or that they are [520 ]

															"unreasonable," "arbitrary," "irrational," "contrary to
fundamental decency,'" or some other such flexible term without
precise boundaries. I have many times expressed my opposition to
that concept on the ground that it gives judges power to strike
down any law they do not like. If the majority of the Court today,
by agreeing to the opinion of my Brother FORTAS, is resurrecting
that old reasonableness-due process test, I think the
constitutional change should be plainly, unequivocally, and
forthrightly stated for the benefit of the bench and bar. It will
be a sad day for the country, I believe, when the present-day Court
returns to the McReynolds due process concept. Other cases cited by
the Court do not, as implied, follow the McReynolds reasonableness
doctrine. West Virginia v. Barnette , 319 U. S. 624 , clearly
rejecting the "reasonableness" test, held that the Fourteenth
Amendment made the First applicable to the States, and that the two
forbade a State to compel little school children to salute
the United States flag when they had religious scruples against
doing so. [ Footnote 3 ]
Neither Thornhill v. Alabama , 310 U. S. 88 ; Stromberg v. California , 283 U. S. 359 ; Edwards [521 ] v. South Carolina , 372 U. S. 229 ; nor Brown v. Louisiana , 383 U. S. 131 , related to
school children at all, and none of these cases embraced Mr.
Justice McReynolds' reasonableness test; and Thornhill,
Edwards , and Brown relied on the vagueness of state
statutes under scrutiny to hold them unconstitutional. Cox v.
Louisiana , 379
U. S. 536 , 555, and Adderley v. Florida , 385 U. S. 39 , cited by the
Court as a "compare," indicating, I suppose, that these two cases
are no longer the law, were not rested to the slightest extent on
the Meyer and Bartels "reasonableness-due
process-McReynolds" constitutional test. I deny, therefore, that it has been the "unmistakable holding of
this Court for almost 50 years" that "students" and "teachers" take
with them into the "schoolhouse gate" constitutional rights to
"freedom of speech or expression." Even Meyer did not hold
that. It makes no reference to "symbolic speech" at all; what it
did was to strike down as "unreasonable," and therefore
unconstitutional, a Nebraska law barring the teaching of the German
language before the children reached the eighth grade. One can well
agree with Mr. Justice Holmes and Mr. Justice Sutherland, as I do,
that such a law was no more unreasonable than it would be to bar
the teaching of Latin and Greek to pupils who have not reached the
eighth grade. In fact, I think the majority's reason for
invalidating the Nebraska law was that it did not like it, or, in
legal jargon, that it "shocked the Court's conscience," "offended
its sense of justice," or was "contrary to fundamental concepts of
the English-speaking world," as the Court has sometimes said. See, e.g., Rochin v. California , 342 U. S. 165 , and Irvine v. California , 347 U. S. 128 . The truth
is that a teacher of kindergarten, grammar school, or high school
pupils no more carries into a school with him a complete right to
freedom of speech and expression than an anti-Catholic or
anti-Semite carries with him a complete freedom of [522 ]

															speech and religion into a Catholic church or Jewish synagogue.
Nor does a person carry with him into the United States Senate or
House, or into the Supreme Court, or any other court, a complete
constitutional right to go into those places contrary to their
rules and speak his mind on any subject he pleases. It is a myth to
say that any person has a constitutional right to say what he
pleases, where he pleases, and when he pleases. Our Court has
decided precisely the opposite. See, e.g., Cox v.
Louisiana , 379
U. S. 536 , 555; Adderley v. Florida , 385 U. S. 39 .

															In my view, teachers in state-controlled public schools are
hired to teach there. Although Mr. Justice McReynolds may have
intimated to the contrary in Meyer v. Nebraska, supra ,
certainly a teacher is not paid to go into school and teach
subjects the State does not hire him to teach as a part of its
selected curriculum. Nor are public school students sent to the
schools at public expense to broadcast political or any other views
to educate and inform the public. The original idea of schools,
which I do not believe is yet abandoned as worthless or out of
date, was that children had not yet reached the point of experience
and wisdom which enabled them to teach all of their elders. It may
be that the Nation has outworn the old-fashioned slogan that
"children are to be seen, not heard," but one may, I hope, be
permitted to harbor the thought that taxpayers send children to
school on the premise that, at their age, they need to learn, not
teach.

															The true principles on this whole subject were, in my judgment,
spoken by Mr. Justice McKenna for the Court in Waugh v.
Mississippi University , 237 U. S. 589 , 596-597.
The State had there passed a law barring students from peaceably
assembling in Greek letter fraternities and providing that students
who joined them could be expelled from school. This law would
appear on the surface to run afoul of the First Amendment's [523 ]

															freedom of assembly clause. The law was attacked as violative of
due process and of the privileges and immunities clause, and as a
deprivation of property and of liberty under the Fourteenth
Amendment. It was argued that the fraternity made its members more
moral, taught discipline, and inspired its members to study harder
and to obey better the rules of discipline and order. This Court
rejected all the "fervid" pleas of the fraternities' advocates and
decided unanimously against these Fourteenth Amendment arguments.
The Court, in its next to the last paragraph, made this statement
which has complete relevance for us today: "It is said that the fraternity to which complainant belongs is
a moral and, of itself, a disciplinary, force. This need not be
denied. But whether such membership makes against discipline was
for the State of Mississippi to determine. It is to be remembered
that the University was established by the State, and is under the
control of the State, and the enactment of the statute may have
been induced by the opinion that membership in the prohibited
societies divided the attention of the students and distracted from
that singleness of purpose which the State desired to exist in its
public educational institutions. It is not for us to entertain
conjectures in opposition to the views of the State and annul its
regulations upon disputable considerations of their wisdom or
necessity." (Emphasis supplied.) It was on the foregoing argument that this Court sustained the
power of Mississippi to curtail the First Amendment's right of
peaceable assembly. And the same reasons are equally applicable to
curtailing in the States' public schools the right to complete
freedom of expression. Iowa's public schools, like Mississippi's
university, are operated to give students an opportunity to learn,
not to talk politics by actual speech, or by "symbolic" [524 ]

															speech. And, as I have pointed out before, the record amply
shows that public protest in the school classes against the Vietnam
war "distracted from that singleness of purpose which the State
[here Iowa] desired to exist in its public educational
institutions." Here, the Court should accord Iowa educational
institutions the same right to determine for themselves to what
extent free expression should be allowed in its schools as it
accorded Mississippi with reference to freedom of assembly. But
even if the record were silent as to protests against the Vietnam
war distracting students from their assigned class work, members of
this Court, like all other citizens, know, without being told, that
the disputes over the wisdom of the Vietnam war have disrupted and
divided this country as few other issues ever have. Of course,
students, like other people, cannot concentrate on lesser issues
when black armbands are being ostentatiously displayed in their
presence to call attention to the wounded and dead of the war, some
of the wounded and the dead being their friends and neighbors. It
was, of course, to distract the attention of other students that
some students insisted up to the very point of their own suspension
from school that they were determined to sit in school with their
symbolic armbands.

															Change has been said to be truly the law of life, but sometimes
the old and the tried and true are worth holding. The schools of
this Nation have undoubtedly contributed to giving us tranquility
and to making us a more law-abiding people. Uncontrolled and
uncontrollable liberty is an enemy to domestic peace. We cannot
close our eyes to the fact that some of the country's greatest
problems are crimes committed by the youth, too many of school age.
School discipline, like parental discipline, is an integral and
important part of training our children to be good citizens -- to
be better citizens. Here a very small number of students have
crisply and summarily [525 ]

															refused to obey a school order designed to give pupils who want
to learn the opportunity to do so. One does not need to be a
prophet or the son of a prophet to know that, after the Court's
holding today, some students in Iowa schools -- and, indeed, in all
schools -- will be ready, able, and willing to defy their teachers
on practically all orders. This is the more unfortunate for the
schools since groups of students all over the land are already
running loose, conducting break-ins, sit-ins, lie-ins, and
smash-ins. Many of these student groups, as is all too familiar to
all who read the newspapers and watch the television news programs,
have already engaged in rioting, property seizures, and
destruction. They have picketed schools to force students not to
cross their picket lines, and have too often violently attacked
earnest but frightened students who wanted an education that the
pickets did not want them to get. Students engaged in such
activities are apparently confident that they know far more about
how to operate public school systems than do their parents,
teachers, and elected school officials. It is no answer to say that
the particular students here have not yet reached such high points
in their demands to attend classes in order to exercise their
political pressures. Turned loose with lawsuits for damages and
injunctions against their teachers as they are here, it is nothing
but wishful thinking to imagine that young, immature students will
not soon believe it is their right to control the schools, rather
than the right of the States that collect the taxes to hire the
teachers for the benefit of the pupils. This case, therefore,
wholly without constitutional reasons, in my judgment, subjects all
the public schools in the country to the whims and caprices of
their loudest-mouthed, but maybe not their brightest, students. I,
for one, am not fully persuaded that school pupils are wise enough,
even with this Court's expert help from Washington, to run the
23,390 public school [526 ]

															systems [ Footnote 4 ] in our 50 States. I
wish, therefore, wholly to disclaim any purpose on my part to hold
that the Federal Constitution compels the teachers, parents, and
elected school officials to surrender control of the American
public school system to public school students. I dissent.

															MR. JUSTICE HARLAN, dissenting.

															I certainly agree that state public school authorities, in the
discharge of their responsibilities, are not wholly exempt from the
requirements of the Fourteenth Amendment respecting the freedoms of
expression and association. At the same time, I am reluctant to
believe that there is any disagreement between the majority and
myself on the proposition that school officials should be accorded
the widest authority in maintaining discipline and good order in
their institutions. To translate that proposition into a workable
constitutional rule, I would, in cases like this, cast upon those
complaining the burden of showing that a particular school measure
was motivated by other than legitimate school concerns -- for
example, a desire to prohibit the expression of an unpopular point
of view, while permitting expression of the dominant opinion.

															Finding nothing in this record which impugns the good faith of
respondents in promulgating the armband regulation, I would affirm
the judgment below. Footnotes [ Footnote 1 ]

															In Burnside , the Fifth Circuit ordered that high school
authorities be enjoined from enforcing a regulation forbidding
students to wear "freedom buttons." It is instructive that, in Blackwell v. Issaquena County Board of Education , 363 F.2d
749 (1966), the same panel on the same day reached the opposite
result on different facts. It declined to enjoin enforcement of
such a regulation in another high school where the students wearing
freedom buttons harassed students who did not wear them, and
created much disturbance.

															[ Footnote 2 ] Hamilton v. Regents of Univ. of Cal. , 293 U. S. 245 (1934), is
sometimes cited for the broad proposition that the State may attach
conditions to attendance at a state university that require
individuals to violate their religious convictions. The case
involved dismissal of members of a religious denomination from a
land grant college for refusal to participate in military training.
Narrowly viewed, the case turns upon the Court's conclusion that
merely requiring a student to participate in school training in
military "science" could not conflict with his constitutionally
protected freedom of conscience. The decision cannot be taken as
establishing that the State may impose and enforce any conditions
that it chooses upon attendance at public institutions of learning,
however violative they may be of fundamental constitutional
guarantees. See, e.g., West Virginia v. Barnette , 319 U. S. 624 (1943); Dixon v. Alabama State Board of Education , 294 F.2d 150
(C.A. 5th Cir.1961); Knight v. State Board of Education , 200 F.
Supp. 174 (D.C. M.D. Tenn.1961); Dickey v. Alabama State
Board of Education , 273 F.
Supp. 613 (D.C. M.D. Ala.1967). See also Note,
Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960); Note,
Academic Freedom, 81 Harv.L.Rev. 1045 (1968).

															[ Footnote 3 ]

															The only suggestions of fear of disorder in the report are
these:

															"A former student of one of our high schools was killed in Viet
Nam. Some of his friends are still in school, and it was felt that,
if any kind of a demonstration existed, it might evolve into
something which would be difficult to control."

															"Students at one of the high schools were heard to say they
would wear armbands of other colors if the black bands
prevailed."

															Moreover, the testimony of school authorities at trial indicates
that it was not fear of disruption that motivated the regulation
prohibiting the armbands; the regulation was directed against "the
principle of the demonstration" itself. School authorities simply
felt that "the schools are no place for demonstrations," and if the
students

															"didn't like the way our elected officials were handling things,
it should be handled with the ballot box, and not in the halls of
our public schools."

															[ Footnote 4 ]

															The District Court found that the school authorities, in
prohibiting black armbands, were influenced by the fact that

															"[t]he Viet Nam war and the involvement of the United States
therein has been the subject of a major controversy for some time.
When the armband regulation involved herein was promulgated, debate
over the Viet Nam war had become vehement in many localities. A
protest march against the war had been recently held in Washington,
D.C. A wave of draft card burning incidents protesting the war had
swept the country. At that time, two highly publicized draft card
burning cases were pending in this Court. Both individuals
supporting the war and those opposing it were quite vocal in
expressing their views."

															258 F. Supp. at 92-973.

															[ Footnote 5 ]

															After the principals' meeting, the director of secondary
education and the principal of the high school informed the student
that the principals were opposed to publication of his article.
They reported that

															"we felt that it was a very friendly conversation, although we
did not feel that we had convinced the student that our decision
was a just one."

															[ Footnote 6 ]

															In Hammond v. South Carolina State College , 272 F.
Supp. 947 (D.C. S.C.1967), District Judge Hemphill had before
him a case involving a meeting on campus of 300 students to express
their views on school practices. He pointed out that a school is
not like a hospital or a jail enclosure. Cf. Cox v.
Louisiana , 379
U. S. 536 (1965); Adderley v. Florida , 385 U. S. 39 (1966). It is
a public place, and its dedication to specific uses does not imply
that the constitutional rights of persons entitled to be there are
to be gauged as if the premises were purely private property. Cf. Edwards v. South Carolina , 372 U. S. 229 (1963); Brown v. Louisiana , 383 U. S. 131 (1966).

															[ Footnote 1 ]

															The petition for certiorari here presented this single
question:

															"Whether the First and Fourteenth Amendments permit officials of
state supported public schools to prohibit students from wearing
symbols of political views within school premises where the symbols
are not disruptive of school discipline or decorum."

															[ Footnote 2 ]

															The following Associated Press article appeared in the
Washington Evening Star, January 11, 1969, p. A-2, col. 1:

															"BELLINGHAM, Mass. (AP) -- Todd R. Hennessy, 16, has filed
nominating papers to run for town park commissioner in the March
election."

															"'I can see nothing illegal in the youth's seeking the elective
office,' said Lee Ambler, the town counsel. 'But I can't overlook
the possibility that, if he is elected, any legal contract entered
into by the park commissioner would be void because he is a
juvenile.'"

															"Todd is a junior in Mount St. Charles Academy, where he has a
top scholastic record."

															[ Footnote 3 ]

															In Cantwell v. Connecticut , 310 U. S. 296 , 303-304
(1940), this Court said:

															"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws. The constitutional inhibition of legislation on the subject
of religion has a double aspect. On the one hand, it forestalls
compulsion by law of the acceptance of any creed or the practice of
any form of worship. Freedom of conscience and freedom to adhere to
such religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. Thus,
the Amendment embraces two concepts -- freedom to believe and
freedom to act. The first is absolute but, in the nature of things,
the second cannot be. Conduct remains subject to regulation for the
protection of society."

															[ Footnote 4 ]

															Statistical Abstract of the United States (1968), Table No. 578,
p. 406.