In Norton v. Discipline Committee of East Tennessee State University, 399 U.S. 906 (1970), the Supreme Court declined to review a federal appeals court ruling that college students’ First Amendment rights were not violated when they were suspended from the university for distributing two “inflammatory” pamphlets. Three justices—Thurgood Marshall, William O. Douglas and William J. Brennan Jr.—dissented from the denial of certiorari, and Marshall accompanied his dissent with an opinion.

ETSU students distributed pamphlets urging others to protest for their rights

The controversy began in May 1968 when several students at East Tennessee State University—including Marietta Norton—distributed two pamphlets urging their fellow students to stand up to the administration and protest for their rights. One pamphlet declared: “Maybe students will learn that no matter what the despots who run this school say, students have the constitutional right to protest, demonstrate, and demand their rights.”

Courts said university could suspend students for distributing disruptive material

University officials suspended the students for the on campus distribution of “material of a false, seditious and inflammatory nature.” Officials contended that the material was meant to disrupt school activities—much like the disruptions that had already broken out at several other universities across the country. After the students lost their appeal at the administrative level, they sued in federal court. The federal district court judge ruled in favor of the university officials. On appeal, a divided three-judge panel of the Sixth Circuit Court of Appeals affirmed the ruling.

Circuit court used Tinker case and the substantial disruption test

The Sixth Circuit majority applied the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District (1969), which held that public secondary school officials could censor student expression if they could reasonably forecast a substantial disruption of school activities. In Tinker, the Court determined that school officials in Iowa violated the rights of several students by suspending them for wearing black armbands to protest the U.S. involvement in Vietnam. However, the Sixth Circuit majority found that East Tennessee school officials had reasonably forecast substantial disruption of school activities and so “had the right to nip such action in the bud and prevent it in its inception.”

Supreme Court denied certiorari

When the students appealed to the Supreme Court, it denied certiorari. In his dissenting opinion, Justice Marshall contended that the First Amendment protected the students’ pamphleteering, which he termed “rather mild invocations of student protest.” He pointed out that the students’ pamphlets were “similar in some ways to the broadsides circulated by popular writers in England and the Colonies, the official suppression of which helped lead to adoption of the First Amendment.”

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

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