The definition of obscenity,
for instance, has been thrown into question as to the extent to which it can
rule out the exercise of First Amendment rights. Legal commentators have
observed that the general direction of the Supreme Court has been toward
granting the primacy of the right to freedom of speech.
Justice Brandeis observed on
the case, however, that “fear of serious injury alone cannot justify
suppression of free speech”, but that such an action can only be performed
if there exists a “reasonable” basis on which to conclude that the
speech will lead to actual violence. He thus distinguished between
“advocacy and incitement”. Though Brandeis agreed with the Court’s
finding in regards to the specific case, his opinion established an argument by
which the unpopular exercising of the freedom of speech could later be extended.
. The defendants in this case were a pair of siblings in high
school and junior high who were prevented by school policy from wearing black
armbands to express their opposition to the Vietnam War. This policy had not
existed before the students made their plans in 1965, but was created shortly
before the planned protest, possibly in anticipation of it, to mandate the
suspension of any student wearing an armband. When the Tinkers chose to go
ahead with their protest, they were accordingly suspended by the
administration. An appeal was lodged on their behalf by the Iowa Civil
Liberties Union, which claimed a First Amendment violation, and by 1968 the
case had reached the Supreme Court.
Court majority decided in favor of the Tinkers’ claim that their First Amendment
rights to freedom of speech had been violated, finding that the school
administration did not sufficiently establish that overall discipline would be
compromised by the Tinkers’ exercise of freedom of speech. Later Court cases
established limits to the freedoms granted to students.