The First Amendment Protects Student Protest We Disagree With

Thirteen members of the Ames High School Marching Band walked off the football field before playing the National Anthem before their school’s football game against Des Moines Lincoln High School.

The Des Moines Register reports:

Thirteen band members linked arms and walked off the field during a performance of “The Star-Spangled Banner” prior to the Little Cyclones’ home football game against Des Moines Lincoln.

Additionally, an unknown number of band members decided not to play their instruments during the anthem.

Those who walked off faced some cursing from spectators in the stands, but they decided to protest despite criticism, said sophomore Lara Murray.

Murray said she decided to walk off to highlight inequality in the United States.

“How can we be unified if there’s racism, sexism and homophobia in our school?” Murray said. “I had a lot of second thoughts on it, but I thought I was going to regret it more if I didn’t do something.”

Originally, the students were planning on kneeling, until Ames High School principal Spence Evans told them they had to walk off the field instead, the students said.

The Ames High Student section abandoned their USA theme as well as it was deemed “too controversial,” the school reiterated that decision was student driven.

It was brought to our attention that USA theme is too controversial and we are just trying to have good time. PINK OUT tomorrow. #rollclones

— AHS Student Section (@AHSStudSection) October 13, 2017

Ames High has great student leaders and the decision to change tonight's student section theme was student driven. #AmesCSD #AmesHighPride pic.twitter.com/CR6ZAViACs

— Ames Community School District (@ACSD_News) October 13, 2017

I disagree with the protest. I believe there are better ways to protest than during the National Anthem. I also think the view that a USA theme is “controversial” is silly. (Honestly, I do not know why they have themes, when I was in school we wore our school colors.)

Frankly, I think the best way to deal with speech or protests I disagree with is either 1. ignore it (which is my favored position when it comes to stuff like this) or 2. counter it with better speech.

Some of my fellow conservatives in their outrage would instead push censorship or disciplinary action in response to what happened Friday night in Ames.

Take, for example, what Fox News Radio host Todd Starnes wrote over the weekend that went particularly over-the-top.

…the school district must deal swiftly to put down this anti-American uprising within the marching band. Those students who chose not to play and those who marched off the field should be immediately removed from the roster.

School leaders must not coddle or tolerate a bunch of petulant and belligerent children dishonoring the U.S. Military or the National Anthem.

The school’s band director declined to comment so we do not know if he had prior knowledge of the protest. Regardless, it is clear the band director does not have control over his program. And the principal clearly does not have control over the school.

The Ames Tribune reports that the students originally intended to take a knee on the field, but Principal Spence Evans rejected that plan.

The newspaper reports the principal told them to stay in the band section if they chose not to play. Oh, so the principal knew about this in advance? Well, that should be an easy decision for the taxpayer-funded school district – fire the principal.

So Starnes believes the public (government) school should discipline students for this protest because he deems it unAmerican and offensive. The principal, he thinks, should be fired for knowing about it in advance and not stopping it.

Starnes, a conservative, believes this. So government schools quashing speech and protests is ok provided we do not agree with it and deem it unAmerican?

Some probably thought Mary Ann Tinker’s decision to wear a black armband with a peace symbol on it into Harding Middle School in 1965 to protest the Vietnam War was disrespectful to the U.S. military and unAmerican as well. They suspended her for violating the school district’s ban against such armbands.

That controversy made The Des Moines Register as well. The school board president at the time, Ora Niffenegger, said the armband ban was a “disciplinary measure” against “disturbing influence” in school. “Our country’s leaders have decided on a course of action and we should support them,” he said.

The Supreme Court in 1969 in Tinker v. Des Moines Independent Community School District ruled 7 to 2 that Tinker’s Free Speech rights were to be respected.

Justice Abe Fortas wrote in his opinion that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

He also said that schools could not censor speech unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

He also wrote:

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle, but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

Since Tinker, the Court has expounded on some limits.

In Bethel School District vs. Fraser in 1986, the Supreme Court ruled that lewd and vulgar language would undermine the educational mission of the school. Therefore schools can discipline students for that kind of speech.

In the Hazelwood School District vs. Kulmeier ruling in 1988, a lawsuit over the school’s principal removing two articles from the school newspaper because he believed they were age-inappropriate, the Court ruled in favor of the school.

The court reasoned “educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”

They also viewed the paper as being part of the journalism class’ curriculum so the school could remove articles.

There is additional case law that deals with student speech that promotes violence or threatens another student.

I suppose one could make a case that the walking off the field before a performance constitutes a disruption to the educational mission, but it would be pretty weak considering it is an extracurricular activity on a Friday night before a football game.

It was lewd. It wasn’t vulgar. It wasn’t violent. It did not endanger anyone. It did not violate anyone’s rights.

Also, terminating a school official who probably believed he had a legal obligation to allow it isn’t the answer either.

Let it go, one day it may be a protest or speech that we do support.

Update: I wrote a follow-up to this article.