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Written by David Asp, published on August 10, 2023 , last updated on February 18, 2024

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Justice Abe Fortas. Fortas was influential in several Supreme Court decisions, including Tinker v. Des Moines Independent Community School District (1969). It was in this case, concerning the rights of students to wear a black armband to school to protest the Vietnam War, that Fortas wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (Public domain via Wikimedia Commons)

Abe Fortas (1910–1982) served on the Supreme Court from 1965 to 1969, when he resigned in the midst of controversy. During his time on the Court, he authored several important First Amendment opinions.


Fortas made political connections early in his career


Fortas, who was born in Memphis, Tennessee, graduated from Southwestern College (now Rhodes College) and Yale Law School, where he edited the law journal. During the New Deal Era, he served in various executive branch positions. Meanwhile, he became friends with a young congressman from Texas named Lyndon B. Johnson.


In 1946 Fortas joined with two other well-known New Deal figures, Thurman Arnold and Paul Porter, to establish what would become one of Washington’s most prestigious corporate law firms: Arnold, Fortas, and Porter.


Fortas championed civil rights in landmark case Gideon v. Wainwright


Although the firm gained most of its revenue from representing large corporations, Fortas also won acclaim for championing civil liberties and the rights of the individual. Indeed, in 1962, prior to his appointment to the Supreme Court, Fortas was chosen by the Court to represent Clarence Earl Gideon, an indigent Florida prisoner who had been convicted without the benefit of counsel. In what became the landmark case of Gideon v. Wainwright (1963), the Court ruled that states had to provide counsel for indigents accused of felonies.


Fortas only served on the Supreme Court a short time


In July 1965, President Lyndon Johnson nominated Fortas to the seat on the Supreme Court vacated by Justice Arthur J. Goldberg, who resigned to serve as ambassador to the United Nations. The Senate confirmed Fortas’s appointment on August 11, 1965. After a short but distinguished tenure, Fortas resigned from the Court on May 14, 1969, under a cloud of controversy that had actually begun to form the previous year. In 1968 President Johnson had nominated Fortas to replace Chief Justice Earl Warren, but senators concerned about Fortas’s financial dealings blocked his confirmation with a filibuster, and later he withdrew his nomination.

Former Supreme Court Justice Abe Fortas addressing a luncheon meeting December 15, 1969 at the National Club in Washington, D.C.. in a rare public appearance since he resigned from the court last May. During his time on the court, Fortas wrote several important First Amendment decisions. (AP Photo, used with permission from the Associated Press.)

Tinker was Fortas’s most influential First Amendment decision


Justice Fortas’s most famous and influential First Amendment decision was Tinker v. Des Moines Independent Community School District (1969).


In Tinker, a school district suspended public high school students for wearing black armbands protesting the U.S. involvement in the Vietnam War. The students sued, claiming that the First Amendment protected their right to express their political dissent by wearing the armbands.Writing for a seven-member majority, Fortas proclaimed, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”


The Court likened the case to, among others, the substantive due process case of Pierce v. Society of Sisters (1925), which found a ban on teaching a foreign language unconstitutional, and West Virginia State Board of Education v. Barnette (1943), which held that students could not be forced to recite the Pledge of Allegiance.


The Court concluded that to be punishable, behavior directly implicating First Amendment rights, such as wearing armbands, must foster disorder or disturbance in the school. Because “only a few of the 18,000 students in the school system wore the black armbands” and there was no evidence that classes were actually disrupted, the school could not meet the high standard justifying punishment of the students.


Fortas was involved in other key First Amendment cases


Justice Fortas also authored a key decision in Epperson v. Arkansas (1968), in which the Court struck down a statute banning the teaching of evolution. The Court rested its decision on the grounds of neutrality in religion, but also emphasized the “fundamental values of freedom of speech and inquiry and of belief.”


In Street v. New York (1969), involving desecration of the U.S. flag, Fortas joined Chief Justice Earl Warren’s dissent. The majority had focused on the man’s speech — not his treatment of the flag itself. The dissenters reasoned that bans on flag burning should, by and large, be constitutional.


Similarly, Fortas dissented from the majority opinion on libel in Time, Inc. v. Hill (1967), in which the Court extended the actual malice test for libel from New York Times Co. v. Sullivan (1964) to include false light invasion of privacy cases. Fortas disagreed that actual malice should be the standard for these cases. Instead, he thought negligence was the appropriate standard for liablity in these types of cases.

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