ANDY CILEK WOKE up on November 2, 2010, got dressed, and headed to the polls to cast his vote. He’d gotten dressed thousands of times in his life. He never imagined that his T-shirt would take him all the way to the Supreme Court.
As soon as he arrived at the polls, Andy was told he would not be able to vote unless he went home and changed his shirt. The reason? The T-shirt in question featured an image of the Gadsden flag with the slogan “Don’t tread on me” and a small Tea Party Patriots logo.
Under Minnesota law, voters were prohibited from wearing political attire—T-shirts, hats, buttons—at polling places. It didn’t matter if the political attire in question had anything to do with any of the issues on the ballot; if an election official deemed it political in nature, you could be turned away from the polls.
For five hours, Andy was prevented from voting by local election officials. Even worse, they took down his name for potential prosecution.
Minnesota is not alone in banning political apparel. At the time, it was one of 10 states to do so. Eventually, Andy was allowed to vote, but the entire ordeal did not sit right with him. The First Amendment was supposed to protect his right to express himself. Yet Minnesota law made it illegal for him to wear his expressive T-shirt. Joining forces with his organization, the Minnesota Voters Alliance, Andy sued in federal court to overturn the law on the grounds that it violated his First Amendment right to free speech.
The lower courts rejected Andy’s claims. In a divided 2-1 opinion, the Eighth Circuit Court of Appeals stated the prohibition on “political T-shirts” was necessary to maintain “peace, order, and decorum” at the polls, and that the interest was significant enough to trample Andy’s First Amendment right.
Unwilling to sit idly by, Andy continued to fight back, this time with Pacific Legal Foundation at his side. Andy’s case, Minnesota Voters Alliance v. Mansky, eventually made it to the Supreme Court, which issued a ruling vindicating Andy’s First Amendment right to wear his expressive T-shirt at the polling place without fear of government retribution.
In 2018, eight years after the incident occurred, the Supreme Court affirmed in a 7-2 decision that the First Amendment protects individuals’ right to wear apparel expressing their views. It doesn’t matter if you are supporting the Second Amendment, the #MeToo movement, or AARP—the government cannot enact a law prohibiting you from expressing “political” views on your T-shirt at the polling place.
Not all of the seven Justices who struck down Minnesota’s law—including the late Justice Ruth Bader Ginsburg—were going to buy their own Tea Party Patriot shirts. Perhaps none of them have ever owned anything like it.
But agreeing with Cilek’s political views was not the point of the case.
English writer Evelyn Beatrice Hall coined the phrase “I disapprove of what you say, but I will defend to the death your right to say it.” Despite accusations that Supreme Court Justices are motivated by their own personal politics, the Court’s record on protecting political speech shows that Justices have consistently prioritized principle over politics. That is their proper role: to protect a person’s right to political speech, even if they do not personally agree with the views being expressed.
What happened to Andy is, unfortunately, not an isolated instance. Government entities have long tried to limit or outright ban political speech.
Throughout the course of U.S. history, the Supreme Court has had to address cases where controversial—sometimes reprehensible—political speech is called into question.
Nearly 30 years before the MVA decision, a group of Minnesota teenagers, cloaked in the cover of night, fashioned broken armchairs into a cross and burned it on the lawn of a black family who lived across the street.
It didn’t take long for the juveniles to be caught and charged with breaking a Minnesota law. The law stated:
“Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”
The teens fought back in court, asserting that the law was too broad and impermissibly content based, meaning it targeted not just the act of cross-burning itself but also the views expressed by the speaker. The government is not allowed to nullify free speech simply because it doesn’t agree with the content of the opinion expressed—no matter how abhorrent it is.
The case, R.A.V. v. City of St. Paul, eventually went before the U.S. Supreme Court, where the ordinance was struck down in a unanimous decision. In his opinion, Justice Antonin Scalia expressed that the state law was unconstitutional because it amounted to discrimination on the basis of viewpoint.
He explained: “One must wholeheartedly agree with the Minnesota Supreme Court that ‘[i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear,’ but the manner of that confrontation cannot consist of selective limitations upon speech.”
To be sure, what the teens in R.A.V. did was despicable and likely punishable under different laws governing trespassing and arson. But it is not the government’s job to punish an individual for their beliefs—even racist beliefs.
That all nine Justices protected individuals’ right to express deplorable, racist beliefs should underscore Justices’ commitment to constitutional principles even over their own personal predilections.
The First Amendment was not conceived to protect only speech deemed acceptable by the public. It was created to protect every individual’s right to think, and the concurrent right to share her thoughts.
And it is the role of the courts to protect this right.
As Justice Scalia wrote, “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”
Before the landmark ruling in the R.A.V. case, in 1984, Gregory Lee Johnson—a member of the Revolutionary Communist Youth Brigade—came under scrutiny after he burned an American flag in front of the Dallas City Hall.
In protest of the 1984 Republican National Convention and the Reagan administration, an unruly crowd of demonstrators marched through the streets chanting, breaking windows, and destroying private property. When they reached city hall, one protester stole an American flag from the building and handed it to Gregory, who doused it with kerosine and set on fire.
To be clear, breaking a storefront window is certainly a crime. Burning a flag could even be a crime, if a state had a law against burning all flags. But burning an American flag on public property should not be punishable just because most Americans hold the symbol in high esteem. Yet, the state charged Johnson with violating a Texas law that prohibited the vandalization of “respected objects.”
The charge was upheld and he was ultimately convicted, sentenced to one year in prison and fined $2,000 dollars.
When Texas v. Johnson was finally heard by the Supreme Court, the Court ruled 5-4 that Gregory Johnson’s act was protected by the First Amendment. The Court declared that the law prohibited “expressive conduct” and political speech, and that Texas could not punish Johnson for expressing his views just because Texas found those views to be “offensive.”
In the majority opinion, Justice William Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
For many Americans, the flag is sacred. It is likely that many of the Justices disagreed vehemently with what Johnson did. Justice Scalia later remarked, “”If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
In concurrence, Justice Anthony Kennedy added:
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. […]
Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace, and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
Justice Kennedy’s comment hits the nail on the head.
The Johnson decision cited, among other precedents, the 1969 case of Tinker v. Des Moines—another case involving speech that was considered anti-patriotic.
The Vietnam War saw a spike in antiwar sentiment in America. As young men were sent off to die for unclear American interests in distant jungles of the South Pacific, many of those back home watched in horror.
The Des Moines-based Tinker family always had a passion for civil rights. The mother, Lorena, was even a leader of the Peace Organization of Des Moines.
In December 1965, Lorena’s 13-year-old daughter, Mary Beth, organized a demonstration in which she and a group of fellow students would wear black armbands to school in protest of the war.
The school board was made aware of the plan and put the kibosh on it before it even began. As soon as Mary Beth arrived at school, she was told to remove her armband and was promptly suspended, along with her brother John and another student, Chris Eckhardt.
The students were told they would not be permitted on school property until they removed their armbands. While they ultimately complied, they still felt compelled to express their anti-war beliefs. They returned without armbands, but they wore black clothing for the rest of the year. They also filed a lawsuit on the grounds that the school district had violated the students’ right to freely express themselves.
The legal battle waged on for four years. Initially, the district court dismissed the claims, deeming the school’s decision reasonable. The Court of Appeals for the Eighth Circuit agreed. The students’ case was then heard in front of the Supreme Court.
The case posed an interesting question, because the students were minors in school, and it was unclear whether they had a right to free speech.
In a 7-2 decision, the Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This not only protected political speech but also affirmed that even minors attending school have the right to express their political opinions.
For the school board’s punishment to be valid, it would have to prove that the acts “materially and substantially interfere[d]” with the other students’ learning. But the school punished the kids before the demonstration even began. The disciplinary measures came from the fear of what would happen, and not from any actual occurrence.
Justice Abe Fortas delivered the opinion of the Court, saying:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
We don’t know whether any individual Justice was pro- or anti-war. But we do know that the Justices believed in the Constitution and its protection of political speech.
Each one of these cases builds upon the other. Without them, who knows if Andy Cilek would have been able to secure a victory decades later. The Minnesota Voters case was not the first of its kind, and it surely will not be the last.
PLF fervently believes, as the Supreme Court does, that the right to express one’s political views transcends partisan politics. That is precisely why we have fought so hard to defend individuals like Andy. Our freedom to express our political opinions cannot be infringed by the government. Fortunately, the Supreme Court tends to agree. Freedom of speech has enjoyed consistent, cross-ideological protection from the Supreme Court. Part of PLF’s mission is to ensure that other core rights—including property rights and equality under the law—are elevated to that same status.