The case Morse v. Frederick, 06-278, is a strange one. It began in 2002 when respondent Frederick, a high school student, unfurled a banner as the Olympic torch went by. The banner read, "Bong Hits 4 Jesus." Obviously, Frederick was suspended, but he later contested his suspension, claiming that his First Amendment rights were violated.
The case was monitored by those who monitor cases dealing with free speech in school. Since 1969's Tinker v. Des Moines, 393 U.S. 503, which established that children in school do have some First Amendment rights, successive Supreme Courts have mediated those rights. In Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court ruled that a school can prohibit speech that may be "offensively lewd and indecent." Two years later, in Hazelwood School District v. Kuhlmeier, 484 U.S. 360, the Court affirmed censorship of school-sponsored student newspapers on the grounds that schools may exercise such censorship if the content of the newspapers is at odds with the school's values and that same content may be perceived to be endorsed by the school.
Today, the Supreme Court released its fragmented opinion, with five justices definitely in favor of the suspension, three definitely opposed, and Justice Breyer concurring in part and dissenting in part. The major problem with Frederick's argument is that he claimed that he was not at school, and therefore, not subject to school regulations regarding speech that promotes drug use. "At the outset, we reject Frederick's argument that this is not a school speech case -- as has every other authority to address this question," said Chief Justice Roberts, writing for the majority. "The event occurred during normal school hours. It was sanctioned by Principal Morse 'as an approved social event or class trip.'" So, Frederick was silly to suggest that he wasn't at school. Every school district's policy says that when a student is on a field trip or other school-sponsored event, he or she is considered to be at school, and school rules apply. This I will grant. Once that has been established, the case is pretty much all over. The school is well within its rights, as demonstrated in Hazelwood, to censor speech that is inconsistent with its values.
What puzzles me about the opinion, though, is the amount of space Roberts devotes to talking about a school's mission of "deterring drug use." For four pages, the chief justice goes on about how drug abuse in schools is a problem, and how "Congress has declared that part of a school's job is educating students about the dangers of illegal drug use." I happen to believe that the above is not "part of a school's job," but as I'm not in Congress, that really doesn't matter. What the court should have focused on is the "material or substantial disruption" portion of the case, not the alleged promotion of drug use. (Frederick himself claims that the signage was "nonsense" designed to garner attention, but apparently reader response criticism has won the day.)
Justice Thomas concurred, writing a long and boring opinion about the history of speech restriction in schools, beginning with the common law definition of in loco parentis ("in the place of the parents"), which is where speech restrictions in school begin and why colleges and universities are not subject to the same restrictions as high schools. Thomas then goes on to stupidly suggest that Tinker was decided incorrectly because it "substituted judicial oversight of the day-to-day affairs of public schools" for self-governance of public schools. Justice Thomas apparently believes that individual school districts should have the right to censor students' Constitutionally-protected speech. Yes, you know, Thomas, you're right: the Supreme Court definitely should not step in when a government entity is violating the Constitution, all in the name of self-rule. If he believes this, then why is he a member of the Supreme Court at all? Why does the Supreme Court exist, if individual government entitites have the right to apply their own, disparate, unconstitutional policies? Apparently, "the history of public education" matters more to him than the Constitution and the Fourteenth Amendment, the latter of which forces the federal Constitution to apply to the states. (Although Thomas, a student of the Scalia school of thought, undoubtedly places "Western tradition" above all else.)
Justice Thomas, once again, is a moron. Moving on.
Justice Alito reasons that the "material or physical disruption" component of Tinker is at work here, and suggests that "the threat to the physical safety of the students" is most important in this case, not the theory of delegation of parental authority. Apparently a student's possible advocacy of drug use "presents a grave and in many ways unique threat to the physical safety of students." Right, because as the Supreme Court has ruled many times before, advocating an idea is the same as putting that idea into practice. Oh, wait. Except that it's ruled the opposite of that.
Justice Alito is a moron. I hope he doesn't feel as though his physical safety is threatened by that statement. Justice Alito, please read Brandenburg v. Ohio the next time you're in the bathroom.
And Then There's Breyer. Justice Breyer, usually a staunch member of the liberal wing of the court, has decided to take The Yella Way Out, choosing instead to rule on the "merits" of the case. Strangely, after he says that the Court shouldn't discuss the merits, he proceeds to discuss the merits. Whaa?
Justice Stevens, writing the dissent, wonders whether or not "protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use [...] is sensible as a matter of policy." After all, "carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment." Stevens suggests that Frederick's message was not an explicit endorsement of drug use; rather, he calls it "an obscure message with a drug theme that a third party subjectively -- and not very reasonably -- thinks is tantamount to express advocacy." While he does not believe that the principal should be held liable for taking the banner down (which I agree with), he also does not believe that the argument about pro-drug speech is wise or relevant.
Stevens then gets to an interesting point:
Consider, too, that the school district's rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all "substances that are illegal to minors." Given the tragic consequences of teenage alcohol consumption--drinking causes far more fatal accidents than the misuse of marijuana--the school district's interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a "WINE SiPS 4 JESUS" banner--which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message--the breathtaking sweep of its opinion suggests it would.
Where, then, does the school district's influence stop? This case suggests that even an obtusely pro-drug message, or possibly even a message that mentions something prohibited by school policy, could be considered an endorsement of that prohibited thing. After all, as Stevens writes above, "Bong Hits 4 Jesus" can have multiple meanings. Even Chief Justice Roberts calls it "cryptic" and suggests that it can have multiple meanings; Roberts even outright discounts Frederick's own interpretation of his own work. While this opinion is not earth-shattering, it nevertheless could be used to further restrict student speech in an undesirable way.
