Reflection: Threads of protest in Supreme Court precedents

By Evan Heichelbech, F/G Scholar

Fleischaker Greene LogoThe nature of a protest is inherently centered around disagreement, and in our country disagreement is something that is not only encouraged, but protected by the laws that govern our citizens. Protests are a byproduct of mounting conflict and disagreement. Naturally, protests are also byproducts of American citizens’ First Amendment rights. Four Supreme Court cases that have resulted in landmark precedents toward further protecting and encouraging this type of pure freedom have some very interesting common threads to be analyzed.

When looking at these cases—all of which are unique and powerful in their own right—it is first important to look at exactly how they became such prominent and public issues to begin with, specifically by looking at who was involved in each situation.

In Abrams vs. United States (1919), unrest began at the hands of six Russian immigrants speaking out against a war their newly adopted country was involved in. To add further nuance to this case, the immigrants were distributing pamphlets against the war, meaning that their case was one involving not only free speech but symbolic speech as well.

In Edwards vs. South Carolina (1963), a protest at Zion Baptist Church in Columbia, South Carolina was started by young African American students. This is noteworthy for a couple of obvious reasons. African Americans were experiencing inequality in some relatively flagrant ways, even though issues like slavery and African American suffrage were decided upon long before these students decided to put their First Amendment rights into action on that day. Beyond that, these were not typical protestors. These were high school and college students speaking out in unison. Both of these distinctions are particularly important because by the time the case reached the Supreme Court, the general perception from a historical viewpoint was one that did not necessarily help their case by any means.

Perhaps the most famous case involving student protesters was brought into the spotlight later in the same decade when Mary Beth Tinker and her brother John protested the Vietnam War with a powerful gesture of symbolic speech at an even younger age. Lastly, the most “modern” case of the bunch in Snyder vs. Phelps (2011) involves a group known for inflammatory hate speech. The general public knows the Westboro Baptist Church more for its critical and off-the-wall forms of speech than it does for actual religious practices. This is very important to understand because of how the Supreme Court ruled in Snyder vs. Phelps.

After considering the uncommonness of all parties involved in these cases, it is even more fascinating to see how the Supreme Court’s collective ruling in these cases encompasses just about every single freedom the First Amendment protects. Although the ruling in Abrams vs. U.S. did not favor the immigrants protesting the war, the way the case escalated to national relevance allowed two Supreme Court justices’ unpopular opinions to shine brightly as the most significant outcomes of the case. Justice Oliver Wendell Holmes wrote a dissenting opinion in which he argued that the immigrants had the same freedom under the First Amendment and that freedom “requires the permission to dissent from the government’s viewpoints and objectives.” So, while the Supreme Court did not double down and grant freedom to these people who already achieved a high level of freedom from their past lives when they successfully entered “the land of the free”, the decision was influential in shaping the mindset for those who wanted to express their frustrations in the future with a government that is supposed to grant that exact kind of freedom to express disagreement.

For the African Americans protesting in Edwards vs. South Carolina, the Supreme Court’s 8-1 decision in defending the right for these minority students to protest was unbelievably crucial for First Amendment rights in America, even if it was hypocritical in some ways. These protesters were wrongfully not allowed to drink out of the same water fountains or even attend the same schools as their white counterparts, yet they were rightfully allowed to voice an equal amount of disagreement as anyone else in the country.

The outcome of Tinker vs. Des Moines is similar to that of Edwards vs. South Carolina in how it exemplified a first-of-its-kind decision to defend free speech and protest rights to those who were previously strangers to First Amendment arguments, so to speak. The most famous takeaway from this case was that neither students nor teachers are expected to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” which is what lives on in this case, and properly so. Without the Tinker siblings’ decision to wear black armbands covered with peace symbols, would students from Marjorie Stoneman Douglas High School have felt as empowered and confident that other schools around the nation would follow their lead to organize school walkouts some four decades later? It may be a stretch to connect the two, but some group of students had to be the first to test these limits of disagreement in an American educational environment, and thankfully, the Tinkers did.

If immigrants’ rights to free/symbolic speech and protests, African American students’ rights to protest, and middle-school age children’s rights to symbolically protest had already been decided upon in landmark cases, what could the Supreme Court possibly have had left to wrestle with concerning free speech in the 21st century? The answer is one of the most difficult for a lot of American citizens to understand: hate speech. The Westboro Baptist Church and its leader Fred Phelps’ picketing of former Marine Matthew Snyder’s funeral came at a very sensitive time of significant change in America. The hate speech directed at the military in this picketing was ultimately defended and upheld with an 8-1 Supreme Court vote, and while it may be hard to understand the reasoning behind this due to the ugly nature of what the Westboro Baptists were expressing, the Supreme Court truly had no other choice. Had the justices decided to punish Phelps and his picketers for their hate speech, an extremely dangerous precedent for disallowing free speech would have been set.

As evidenced by modern free speech centered protests such as Black Lives Matter, the alt-right movement, Parkland protests and more, it is virtually impossible for the entire country to agree upon divisive issues. If school walkouts, rallies for racial equality and even rallies for racial inequality are permissible in this country, hate speech must be tolerated as well. Because after all, protests are inherently centered around disagreement, and disagreement can have a considerable amount of positive effects, even if it means stomaching some of the negative effects along the way.

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