Norton v. Discipline Committee of East Tennessee State University/Opinion of the Court

Indeed many of these older examples of the pamphleteering art were far cruder in tone and more inflammatory in content than the rather mild invocations of student protest before us here. Where such writings are suppressed, they are normally called 'seditious' and 'inflammatory,' and legal action against them is justified-as it was here-on the ground that they constitute an 'incitement' to crime or other disturbance that the offended officials have a right or duty to prevent. But to accept that formula without close examination of the facts would be to submerge the First Amendment altogether, for as Mr. Justice Holmes said, in words that are often quoted but at least as often disregarded, '[e]very idea is an incitement.' Gitlow v. New York, supra, 268 U.S. at 673, 45 S.Ct. at 632. On this record, there was nothing approaching incitement of the kind which could constitutionally be punished as extending beyond the realm of speech into that of action. In their own testimony, the university officials demonstrated no more than the sort of 'undifferentiated fear or apprehension of disturbance,' which, as we held in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), 'is not enough to overcome the right to freedom of expression' even in the context of a classroom and as applied to high school rather than college students.

I cannot believe that this Court would hesitate one moment before striking down a criminal conviction based upon these pamphlets, or for that matter a civil judgment, or a prior restraint by injunction or administrative order against their distribution. This case differs in that the distribution took place upon a campus, the authors were college students, and the sanction was suspension from the university. As to the last point, it seems clear that suspension is punishment, and that punishment for speech is 'abridgment' in the constitutional sense. Tinker v. Des Moines Independent Community School District, supra. As to the former two points, they do not change the case. 'The first amendment applies with full vigor on the campus of a public university.' Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1037 (1969). Officials of public universities wield the powers of the State, and in my view they are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.

Student protestors are unpopular today, and the activities of some of them fall far outside any plausible construction of the constitutional guarantees of free expression. There is a tendency to lump together the burning of buildings and the peaceful but often unpleasantly sharp expression of discontent. It seems to me most important that the courts should distinguish between the two with particular care in these days, when officials under the pressure of events and public opinion are tempted to blur the distinction. Our system promises to college students as to everyone else that they may have their say, and when it breaks that promise it gives aid and comfort to those who say that it is a sham.