Scholastic free speech: Tinkers ask Supreme Court to rule on ‘heckler’s veto’ case

John and Mary Beth Tinker of the landmark Tinker v. Des Moines U.S. Supreme Court decision have filed a friend-of-the-court brief  asking the court to hear an appeal of the case of Dariano v. Morgan Hill. Students lost the free speech case in the Ninth Circuit in which they challenged the school administration’s ban on wearing American Flag clothing during Cinco de Mayo celebration in 2010. The administration claimed that there was a history of racial tension justifying the ban. Critics of the decision called the ban a “heckler’s veto.” (Student Press Law Center, January 26, 2015, by Frank LoMonte)

In their brief the Tinker siblings called into question the  decision that upheld a heckler’s veto. They pointed out that when as school children they wore black armbands to protest the Viet Nam war in the 60s, they and their father received threats. And that during the civil rights movement, it was critical to safeguard the free speech rights of protesters faced with threats and actual violence. “…the rumblings of those who disliked what they (wrongly) saw as the Tinkers’ anti-American or anti-military message could not justify censoring students who peacefully express themselves. Likewise, the rumblings of those who dislike what they (wrongly) see as an anti-Mexican message cannot justify censoring the peaceful students in this case,” read the brief. (The Washington Post The Volokh Conspiracy, January 28, 2015, by Eugene Volokh)