The Power and Limits of the First Amendment: Mary Beth Tinker Speaks at UVA

Today, many Americans see the First Amendment as a key part of their national identity. Indeed, most Americans would also call it the most important provision in the entire Constitution. Surprisingly, though, until quite recently, the First Amendment had little legal sway—it was only through a series of legal battles and court rulings beginning in the early 20th century that the Amendment acquired the power and status it holds today. One such legal battle that led to the expansion of First Amendment rights is the 1969 Supreme Court case Tinker v. Des Moines, one of whose plaintiffs, Mary Beth Tinker, came to speak at an event hosted by the Jefferson Literary and Debating Society on Friday. 

Tinker v. Des Moines has its origins in a plan hatched in 1965 by Mary Beth, her siblings John, Hope, and Paul, and their friend Christopher Eckhardt. The five students agreed to attend school wearing black armbands to protest the war in Vietnam, as American involvement in the war had significantly escalated following the Gulf of Tonkin incident the previous year. Mary Beth, John, and Christopher were soon suspended, and the ACLU agreed to take up their case. Lower courts upheld the Des Moines school board’s decision to suspend the students, but the case eventually made its way to the Supreme Court, where the Justices ruled 7-2 that the rights provided by the First Amendment extend to students at public school. Today, the ruling is still employed as precedent for cases involving speech in schools by judges across the country. 

Tinker’s talk didn’t focus too much on the legal battle itself, however. Most of the work was done by lawyers once the case reached the courts, and Tinker simply had to stand back and wait with bated breath as the legal system did its job. What the talk really emphasized was what led up to Tinker v. Des Moines, i.e. what values and experiences led those five students to make their bold stand for free speech. 

Much of Tinker’s motivation came from her family. Her father was a Methodist minister who was known for his willingness to stand up for causes he felt were right, even if that meant risking his social standing. These values were imprinted onto Tinker’s siblings: for example, outraged by a segregated local swimming pool, the siblings convinced their father to speak out to his congregation, sparking a movement that eventually led to the desegregation of the pool. Methodist higher-ups disliked her father’s politically-charged sermons, however, and he was eventually asked to leave their local church. The family then moved to another neighborhood of Des Moines so her father could take up a preaching job at a different congregation, but that church proved to be similarly uncomfortable with his preaching. Eventually, the family started attending Quaker meetings instead, finding the denomination’s values more in line with those of the increasingly activist family. 

The family’s religious troubles were mirrored by the rocky state the nation found itself in during the 1960s. Political turmoil faced the country after President John F. Kennedy’s assassination, and the South, outraged by the Supreme Court’s ruling in Brown v. Board of Education, pursued an increasingly brutal policy of “massive resistance.” Protests for civil rights spread across the country, many of which faced violent repression. and many faced violent repression. Halfway across the world, American soldiers were dying every day in Vietnam while American planes wreaked havoc on the Vietnamese countryside. 

With all kinds of injustice present in the world, Tinker felt obligated to protest—and she wouldn’t let the fact that she was still a middle school student get in the way. Tinker and the rest of the group were inspired by ongoing student activism. Some inspirations for them included the Freedom Summer in Mississippi, a massive volunteer campaign to increase Black voter registration in Mississippi; protests on college campuses against the Vietnam War, where students marched despite increasing intimidation by authorities; and a movement to wear black armbands in remembrance of the victims of the 1963 Birmingham Church Bombing. It was the latter protest specifically that inspired the five students to eventually think of their own means of standing up for a cause they believed in. 

Once Tinker gave the overview of what led up to the case, she moved onto what she has done following her victory in the nation’s highest court. Since becoming a pediatric nurse, Tinker has continued to give speeches across the country to inform students of their rights. She has not limited herself to the issue of free speech in schools, however. In her talk, she noted that her work as a nurse in Washington, D.C. has made her acutely aware of the massive gap in health outcomes between white children and African American children, in addition to the growing problem of gentrification. 

Tinker also spoke out about the war in Gaza, noting her concerns that pro-Palestinian speech was being silenced at schools and universities across the country and criticizing the idea that criticism of Israel is antisemitic. For her, the perfect parallel came from all the way back in the 1960s: many critics of the Tinker family argued that their opposition to the Vietnam war made them communists; some sent threatening letters or threw red paint on their house. The family remained resolute, however, and Tinker’s father issued a witty retort: “We aren’t communists, we’re Methodists!” 

As attendees began asking questions, the talk shifted to a conversation about the limits of free speech. One person asked what Tinker thought of the “Paradox of Tolerance”—the idea that in order to ensure a society remains tolerant, it cannot tolerate intolerant speech. Tinker replied that while she understands the harmful effects of intolerant speech, she also believes that intolerance is itself a subjective idea; for instance, many people found her protest against the Vietnam War intolerant, arguing that it was offensive to the American soldiers who were risking their lives in Vietnam. Another attendee asked a similar question: is it okay to use violence against people who advocate violence, such as Nazis? Tinker said—to laughter across the room—that while she would very much like to punch a Nazi, the law has to apply to everyone. Another person asked Tinker about the growing issue of self-censorship. Tinker noted that this was a common concern many people—especially the younger students she often delivers talks to—have expressed. To Tinker, the best way to solve this problem is to have places where people can feel safe to express any view they might have.

Before leaving, Tinker made one last timely comparison: that the climate of the 1960s is similar to that of the 2020s. She certainly isn’t wrong; the country recently experienced a nationwide reckoning over racism, extensive protests over American support for a war abroad, and deepening political divides. Amidst all of this, we would be wise to follow Tinker’s path and stand up for the causes we believe in. For students at UVA and across the country, this is especially important. Tinker herself noted that while young people can be impulsive, it is that same tendency that leads them to be brave. In an era of book bans, wars raging across the globe, and ever-growing political polarization, America’s youth needs to be braver than ever.