So to Speak podcast transcript: From black armbands to the U.S. Supreme Court

June 25, 2019

Editor’s note: The audio from this podcast conversation can be found at this link. An abridged video version of the conversation can be found at this link.

Nico Perrino: Happy New Year! And welcome back to So to Speak, the free speech podcast where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I want to start today’s show off by thanking all of you – thanking you for writing in or Tweeting at us about our last episode with the scholar Anthony Leaker. It’s clear that many of you are eager for more episodes with folks who are skeptical of or hostile to free speech arguments. So, I’ve made a New Year’s resolution – a new resolution for 2019, and that is to invite more critics of free speech onto the podcast. I’ll extend the invitation, but I can’t promise they’ll come on. I hope they will and I hope you enjoy those episodes just as much as you enjoyed my conversation with Anthony Leaker. But for today’s show, I’m handing over the reins to attorney and recurring podcast guest Bob Corn-Revere. As many of you recall from our past episodes with him, he is an experienced First Amendment litigator and a partner at the law firm of Davis Wright Tremaine. Unfortunately, I’m not able to do this week’s show because my grandfather actually passed away after the New Year. So, I have to travel home to be with the family and did not have time to arrange and record an interview myself. But have no fear. Bob does a fantastic job and I should be back in the saddle for our next regularly scheduled podcast episode here in two weeks.

What you’re about to hear is an interview between Bob and the longtime free-speech activist Mary Beth Tinker. The conversation was recorded in early 2016, and I’ve been holding onto it for you all for the past three years for an occasion like this. Mary Beth is perhaps best known for being a petitioner in the landmark 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. The case held that “students don’t shed their constitutional rights at the schoolhouse gates.” Here, Mary Beth tells her story and I hope you enjoy it.

Bob Corn-Revere: Hi. My name is Bob Corn-Revere. I’m a partner at the Washington DC law firm Davis Wright Tremaine. I practice First Amendment law and am outside counsel for the Stand Up For Speech program of the Foundation for Individual Rights in Education. It is my great privilege to be sitting today with Mary Beth Tinker, who I like to think of as the Rosa Parks of the student Free Speech Movement. She is a named party in the landmark case Tinker v. Des Moines Independent School District that established First Amendment rights for students because of her activities in protest in the Vietnam War wearing a black armband. Mary Beth, it’s a pleasure to be with you.

Mary Beth Tinker: Thank you so much, Bob. I admire you for all of your work and it’s just great to have worked with you over the years on some different things that we have in common as far standing up for the First Amendment.

Bob: Wow. I have to say, as someone who practices First Amendment law, it is a thrill to be sitting with someone who through her own actions put herself on the line and helped create that law. Can you tell us a little bit about what led to the case?

Mary Beth: I was growing up pretty much an ordinary child in Des Moines, Iowa. My father was a Methodist minister and there were six kids in our family. My parents believed in putting their faith into action. And so, that led them to get involved with the Social Gospel Movement of the time. Some people say that all gospel is social gospel, but for my parents, it led them to be involved with the Civil Rights Movement, fair housing, antidiscrimination issues, fair employment issues and things like that starting with the small town where my father was a minister in Atlantic, Iowa. And so, that’s how we were raised with that kind of example. And it really had a huge effect on us – all of us kids.

Bob: But, you were raised with that consciousness at an early age. I mean, you were 13 years old at the time? This was the mid-1960s?

Mary Beth: I was 13 in 1965. That Christmas, there were about 1,000 U.S. soldiers who had been killed already in the Vietnam War. And the war was escalating. But, most Americans didn’t know that because most of the escalation was happening really in secret or in private. And so, we didn’t really know a lot about the politics of the war, us kids. But then, neither did most Americans. We just knew that when we looked at the TV in the evenings, we would see Walter Cronkite and the newscasters with photos of these very powerful scenes of the war – the children running from their burning huts, and soldiers in body bags and the Vietnamese running, and the coffins with the flags. And it was very, very powerful for us. I felt very emotionally like kids do today when they see the news. I was speaking, I think, in Ohio recently and a seventh grader told me, “You know, I see the news and I feel so sad. But I don’t know what to do about it.” And that’s exactly how I felt.

Bob: So, you decided to wear a black armband in protest – or, protest or mourning? What was the –?

Mary Beth: The black armbands were for mourning the dead in Vietnam on both sides of the war. And that’s what made it so controversial. If we had been, I think, supporting the troops or mourning for only the U.S. soldiers, maybe it wouldn’t have been so controversial. But, that was our message. We were mourning for the dead on both sides. It was Christmas time and Robert Kennedy – the North Vietnamese had proposed a truce – a Christmas truce. And Robert Kennedy, Sen. Robert Kennedy was behind that idea and he said that yes, that was a good idea. So, us kids heard about it and as kids all over the world feel, we wanted peace. And so, we heard about that idea. But, the idea didn’t just come out of the blue. My parents were involved by then not only with the Civil Rights Movement, but also with the peace movement. There was a group called Iowans for Peace, and there was a college group and some high school kids who had gone to the first national antiwar rally in Washington, D.C. that November – the month before. And my brother John went, my sister Bonnie, who was a freshman in college then, and John was in 10th grade then. He had gone with my mother. A boy named Chris Eckhardt who became another plaintiff in the case also went to that rally with his mother. The Eckhardts were Unitarians.

By this time, we were Quakers because although my father had been a Methodist minister, he went to work for the Quakers a few years before we wore the armbands. And so, of course the Quakers are all about peace. And so, like all kids, we were influenced very much by our family and we were part of a group and it wasn’t just one or two kids getting this idea out of the blue to speak up for –

Bob: So, you, and John and Chris Eckhardt decided to wear armbands school.

Mary Beth: Yes. And also a few other high school kids and some college kids too were wearing armbands too. But mostly the kids in the high school. There were about 50 kids who were signed up to wear armbands. The whole thing started at Roosevelt High School in Des Moines where I was in December on the exact 50th anniversary of when it was planned. This last December of 1965 is when it was planned. And so, we went back for a 50th anniversary. It was great. I went to my middle school where I was suspended on the exact day that I was suspended December 16. It was really great. But, regardless, it was all planned there at Roosevelt High School. And then my brother went to North High School. So, a few high school kids. But a lot of high school kids were going to wear the armbands. About 50 kids were planning to wear the armbands and had signed up.

Bob: And how many did end up wearing armbands?

Mary Beth: In the end, there were, I think, six – or no. I think there were about seven or eight kids if you count, of course I do, my little sister who was in fifth grade who wore an armband to her elementary school.

Bob: That was Hope?

Mary Beth: Hope and my little brother Paul who was in second grade. They said, “We want peace too.” So, they wore armbands to their elementary schools and we visited their elementary schools this December and met with Hope’s teacher who came out and it was really wonderful.

Bob: So, because of this terrible threat that students might mourn the dead, as I understand it, the school board had a special meeting and decided to ban the wearing of armbands. Is that right?

Mary Beth: Yes. They heard about the plan because one of the boys at Roosevelt, I think it was Ross Peterson, wrote an article for the school newspaper. And so, student journalism is very much and involved in our case because they wrote not only that article, but there were several articles that they wrote for the Roosevelt student newspaper. And the principal heard about the idea. And so, they had this hasty meeting of the principals and decided that it would be too controversial. And so, they passed a rule banning armbands in the Des Moines schools. And it came out in the newspaper, I think, two days before we were going to wear the armbands. So, that kind of threw the wrench into our plan. And then most of the kids on the list of 50 kids who were going to wear armbands dropped off.

Bob: Right. But you and your brother and a few others decided to wear them anyway. Now, why did you do that?

Mary Beth: There were two reasons, one, because I was just emotionally upset about the war. Like I said, so many kids – I’m a nurse now and I work with kids. But, you know, young people have a lot of heart and a lot of emotion. And they respond to what’s going on in the world around them more than adults give them credit for a lot of times. And we were very affected by what we saw in the news. And it made us feel very upset to see these children, you know, whose huts were being bombed and soldiers being killed. And some kids in our neighborhood were being drafted. And so, there was that, but there was also that combined with my upbringing and having some people who encouraged us to speak our minds, to speak up for what we believed in. My parents didn’t exactly – well, my mother thought it was okay when she heard about the black armbands. My father was against the plan because he thought, you know, kids should follow the rules. He was from upstate New York and he was kind of conservative – socially conservative I would say.

But, you know, we convinced my dad because my parents had come from World War II very concerned about the good people who say nothing and allow things like Nazism to take hold. And so, they really believe that you have to speak your conscience and have to put it into action. This was all part of their religious faith and it was all connected with that. So, it was the combination of being raised in this atmosphere where there was encouragement for speaking your mind and not necessarily always being popular. They weren’t running for popularity.

Bob: And you took a lot of flak for this, didn’t you?

Mary Beth: We did get some flak. I was surprised actually because I knew I was going to break the rule and I thought I might get suspended. But I felt that it was worth it. And also, we had examples mostly from the Civil Rights Movement because we had the Birmingham kids that we had seen on at least and 2,000 kids there were arrested in 1963 when I was 10.

Bob: So, because you went ahead and wore the black armband, you were suspended from school, right?

Mary Beth: I was suspended, and I just came across my original suspension notice by the way.

Bob: Yeah. Could you show us that?

Mary Beth: I found this in a box a few months ago. The original suspension notice and it says [inaudible] [00:09:56] and I think, “Reverend and Mrs. Tinker, Mary Beth is suspended today for wearing black armband.” And it’s signed by Mrs. Tarmon, the girls’ advisor there at Harding Junior High School. But, you know, I was really nervous and I was a very shy girl and I didn’t like to stand out in a crowd – far from it. I liked to pretty much blend in and go roller skating and study for math class. That was my favorite.

Bob: I believe you have a picture of yourself during that period of time. Right?

Mary Beth: Well, yeah, because after we got suspended, we tried to go to the school board and change their mind. And so, this was a picture that the Des Moines Register took at that time. And the photo was by Dave Penney for the Des Moines Register. That’s my mother, and my father is here. And then Chris Singer, she was suspended also. And I’m not exactly sure. I haven’t been able to pin down who that boy is there.

Bob: And I see you’re wearing your black armband in that picture.

Mary Beth: Yeah, and my black armband. Yeah. That’s at the school board meeting where we tried to go and a lot of people spoke up. It was a crowded meeting. We tried to change their mind, but they wouldn’t change their mind.

Bob: And long story short, you ended up in court.

Mary Beth: And so, the American Civil Liberties Union, someone in the Iowa Civil Liberties Union, a woman named Louise Noun heard about this and so she offered my parents to come and help us. I think there was a William Kunstler. You may remember –

Bob: Yes.

Mary Beth: – the famous lawyer –

Bob: From Chicago.

Mary Beth: Yeah, the Chicago. So, he also offered to take our case. But, my parents decided to go with the American Civil Liberties Union. And so, they said, “You’ve got to negotiate. Try to change their mind.” But, when the school board wouldn’t change their mind, they took it to court. And we had a wonderful lawyer. We had two. Craig Sawyer was great and then a man named Dan Johnston who was also with us in Des Moines a month or two ago to celebrate the 50th anniversary. He was a really young lawyer right out of law school.

Bob: But it was tough going given the state of the law the time. And originally, you lost. Right?

Mary Beth: Yes. We lost at the district level. Well, I thought we would lose the whole thing because I thought, you know, “Fine if you all want to take this to court.” I thought, “It’s okay.” But, I thought no big important judge is going to rule that kids can break the rules. And then I had my math teacher Mr. Moberly who was the one who sent me to the office and he was one of my favorite teachers. But I thought, “There’s no way you can go up against someone like Mr. Moberly.” And so, I thought, “Of course us kids are going to lose.” So, we lost at the district level and then we lost at the appeals level. But, over in Mississippi at this time, there were other events going on. There was something called Freedom Summer in 1964 where three young civil rights workers, Cheney, Schwerner and Goodman were murdered by the Ku Klux Klan. And some kids wore buttons to school to protest that. And the button said, “One man. One vote.” And they had been suspended. So, their case was working its way through the courts as well. So, right around the same time that we lost our case at the appeals level at the Eighth Circuit, in the Fifth Circuit in Mississippi, those kids won their case.

Bob: So, this set up a circuit split –

Mary Beth: It set up a circuit split.

Bob: – making it ripe for Supreme Court review.

Mary Beth: Exactly. I didn’t know about that at the time. I was going on with my life. I was worried about what I was going to wear to school, and what I was going to do on the weekend and who was going to be my friend in algebra class and things like that. But at the same time, we would go to depositions and some people –

Bob: You were deposed in the case.

Mary Beth: Yeah. And then, I think we went to St. Louis for the appeals court and that was a huge deal because it was the first time I flew in an airplane. And, you know, I was nervous and shy, worried about whether I was going to wear the right things. And also these crazy people had come out of the woodwork. I knew they were out there because I knew about Selma, which was in 1965. I knew about Birmingham. I knew –

Bob: Well, you even got death threats.

Mary Beth: Yeah. These people would – some people started throwing red paint at our house after we wore them, calling us communists. My mom would always say, “We’re not communists. We’re Methodists.” But, I remember a woman called me on the phone when I was about to go off to school and she said, “Is this Mary Beth?” And I said, “Yes.” And she said, “I’m gonna to kill you.” And I just thought, “These people are crazy.” But, I knew they were out there, but it hadn’t ever really hit me personally before.

Bob: But, you still felt it was important enough to keep this up?

Mary Beth: And I was surrounded by brave people giving me an example – the kids in the Civil Rights Movement who had been attacked by the dogs. I mean, we saw this on the news from the comfort of our living room there in Des Moines, Iowa. But, we knew there were other brave people that were standing up and speaking up including my parents and others.

Bob: So, the case goes to the Supreme Court.

Mary Beth: Yeah.

Bob: Did you go to the argument?

Mary Beth: I did! I went to the Supreme Court. Yes.

Bob: And what did you think of that?

Mary Beth: My brother John, unfortunately, missed because he missed his plane. So, he wasn’t there. But, yeah. I mean, by that time, I was a junior in high school and we had moved to a new city. We had moved to St. Louis. And so, I was very taken up with sort of teen issues in who were going to be my friends at the new school, was I going to do well in my classes. And so, I think I just didn’t, you know, I couldn’t focus on what was going on at the Supreme Court as well as I should have. But, I remember vaguely. I remember the justices up there, but I couldn’t tell you the details of what happened.

Bob: But, did you get an impression? You were talking about you couldn’t believe that a 13-year-old could go up against a math teacher. Did you get the impression that you were being taken seriously by people at the highest levels of our judiciary?

Mary Beth: Yes. That was very amazing to see how not only the justices on the Supreme Court were actually arguing this case and our lawyer would get up and be very lawyerly and, you know, look so serious. And I was pretty impressed that there were these adults out there that actually do stand up for kids’ rights. And, I mean, one of the most important players in this was the American Civil Liberties Union. And so, I’ve been a big fan of theirs ever since because, I mean, here we were, these little kids. And our lawyer came and not only was he a great lawyer but he was a great friend and supporter to young people who really were being attacked and threatened just for speaking up for the First Amendment and for peace.

Bob: And so in the end, you won this landmark case. And I can tell you from someone who practices First Amendment law and works with many other people who do as well, that this is one of those inspirational cases that people go back to again, and again to read and to draw inspiration from. And it has so many great lines like, Justice Ford is writing for the majority, “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.” He goes on to say that this is a “hazardous freedom” because speaking one’s mind is not always easy, that, “In our system, state-operated schools may not be enclaves of totalitarianism.” This ringing language. Do you have a favorite line from the case?

Mary Beth: One of my very favorite lines is that students are persons under our Constitution with the rights and responsibilities of persons. I love telling that to kids in the high schools and the middle schools that, “Guess what? You’re persons. The Supreme Court has decided that you’re persons.” Because, a lot of times I teach kids about the rights of children and the rights of teenagers and how this is in the context of that long-time struggle that kids have been in for many, many years to gain their rights. I mean, kids used to be thought of as property of their parents. And so, this was a very big deal when the Supreme Court ruled that students are persons with constitutional rights.

Bob: Well, I can take that this decision change things under the law in the United States – something that we continue to work at. But, it obviously changed your life as well. Can you talk a little bit about that?

Mary Beth: This case and this ruling have completely defined my life. I didn’t realize it at the time, but I grew up and I became a nurse and one day, I was studying for my nursing school exam and there was our case in my nursing school book. I think that’s one of the times when it really hit me that this case was a big deal. And why was it in there? Because of children’s rights. And nurses need to know about children’s rights. And that’s when I started learning that teachers learned about this case, and they need to know about children’s rights, and superintendents, and lawyers, and law students, and policymakers learn about this issue of children’s rights. And so, I became a nurse and I worked mostly with kids. I still didn’t really get how important the case was all over the country and that it was being used all the time as a precedent.

Bob: It’s a very humbling thing, isn’t it?

Mary Beth: Very humbling.

Bob: Realizing that something you’ve been involved in has had such a widespread impact.

Mary Beth: Yes. And also for one of my favorite causes which is kids and then having a voice. As a nurse, I started to see how kids really don’t get a fair deal in our society. And I started seeing how, for example, who are most likely to live in poverty? Children and teenagers. And it’s not because they don’t have jobs, it’s because their parents, just from the fact of having kids, tend to have more poverty. And I saw so many other issues going on with kids that they really weren’t getting a fair deal. In the schools, their voices weren’t being respected. They were living under policies that they had absolutely no say on.

Bob: And your cause is to make sure that students and children have a voice and these things affect their lives. Right?

Mary Beth: Yes. Because, not only is it the morally right thing to do, we would all benefit if kids had more of a voice. It would be better for everyone. And when kids do have a voice, it does make a better society. You can kind of judge a society by how well the kids are doing. In our society, that’s not really too well. And when kids have a voice, it’s better.

Bob: And because of that interest, you continue to be active in talking to students, inspiring students, teaching them about the First Amendment. Could you talk a little bit about your activities in doing that?

Mary Beth: Yeah. Working as a nurse, I just thought, “You know, maybe there’s something in my experience that if I shared it with kids and started speaking with them more and more, it would encourage them and inspire them.” I had a lot of inspiration as a child to stand up for the things I believed in. So as a nurse, I started seeing more and more how kids really need to speak up for themselves and stand up for themselves. And I started speaking more and more in the schools, and the kids really responded.

Bob: You’ve actually been traveling around the country to talk to students.

Mary Beth: I started traveling around the country a few years ago on a Tinker tour and we went to 41 states. I traveled with Mike Hiestand, the lawyer with the Student Press Law Center who stands up for journalism rights. And I started meeting all of these other great organizations that are standing up for the rights of young people – the Foundation for Individual Rights in Education – FIRE, certainly one of them. But, so many other organizations. And of course the ACLU always has. But, I developed this little coloring book having true stories of kids who speak up and stand up for the things they care about. And they use the First Amendment in all different ways. And it has things like Black Lives Matter or kids in Virginia that stood up about their school budget for their orchestra program. Just all different things all over the country. Kids at Hopi High School – the Hopi Indian kids who have a radio show. So many kids all over the country are speaking up and standing up.

Bob: Have you also been following what’s been going on in the trends on free speech on college campuses?

Mary Beth: Yes. Most of my work is with the K to 12. But, I also do go to quite a few colleges and law schools to and speak with a lot of teachers. And on the colleges, there is so much going on. So many students are speaking up about all the issues of the day – the environment, college tuition, racism, anti-Muslim, Islam-a-phobia, so many things, wanting to have more of a voice in curriculum. And of course all of the efforts to stifle free speech on campus are very concerning. And things like the trigger warnings – I’ve been very concerned about. And the idea of being unpopular is something that is really causing a lot of students to censor themselves – the fear of being unpopular. But, I want to tell kids and encourage kids that popularity isn’t the most important thing because that can change. Look how I was suspended from school in 1965. Now last Fall, I was invited back to the Des Moines schools. They rolled out the red carpet. I have my very own locker now at Harding Junior High School forever. So, I mean, things change.

Bob: So, history was on your side.

Mary Beth: Exactly.

Bob: Now, how would you evaluate the work of an organization like FIRE in dealing with the atmosphere of suppressing speech on college campuses?

Mary Beth: FIRE is so important because when you speak up for something that you believe in and maybe you’re not popular, you’re standing up for the First Amendment, you may feel all alone. You may not know that there are others out there that can help you, that can support you, but with groups like FIRE, you have resources. You have support. And the same for the Student Press Law Center, the ACLU, other groups that are out there that help students to speak up and stand up. I mean, the NAACP. But, FIRE is really important because not only are they standing up for students, but they have a campaign to take it to the public all over the country and let people know. There are 10 worst colleges and best colleges for free speech. It’s very important when a student goes to college. They want to evaluate, “What’s my life going to be like at that college? Am I going to be able to express myself and really live the Constitution instead of just studying it?”

Bob: Mary Beth, thank you so much for spending some time. It’s been a great privilege.

Mary Beth: Thank you so much. It’s really been an honor, and I wish only good things for you and also for the Foundation for Individual Rights in Education. Thank you.

Bob: Thank you.

Nico: That was attorney Bob Corn-Revere and free-speech activist and Supreme Court petitioner Mary Beth Tinker. You can find an abridged video version of their conversation at youtube.com/theFIREorg and at the link in our show notes. This podcast is hosted and produced by me, Nico Perrino, recorded by Aaron Reese and Chris Maltby, and edited by Aaron as well. To learn more about So to Speak, you can follow us on Twitter at twitter.com/freespeechtalk, or like us on Facebook at facebook.com/sotospeakpodcast. You can also email us feedback at sotospeak@thefire.org. And, if you enjoyed this episode, please consider leaving us a review on Apple Podcasts or wherever else you listen to your podcasts. I’ll be back in the saddle here in two weeks with a new episode of So to Speak. But until then, thank you for listening.