In Morse v Frederick, the now-famous “Bong hits for Jesus” case, the Supreme Court, by a 5-4 ruling, came down with just about the worst free speech ruling issued during my lifetime (see full text here). I expected a very narrow ruling in favor of the school. Unfortunately, the court issued a very broad ruling in favor of school authority to censor any speech they see fit, not because it causes any disruption, as the standard in Tinker required, but because it disagrees with a message the school thinks is important. This is a very dangerous precedent.
Leaving aside the question of whether the event was school sponsored or not (a very close call and I’ve no problem with the court saying it is), it is the breadth of the ruling that surprises me. Essentially the court says “drugs are bad and therefore the school can punish any student who makes any statement that might be construed as encouraging drug use.” Here is the holding:
A principal may, consistent with the First Amendment , restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment , id., at 504, that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school,” id., at 513. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 , however, upheld the suspension of a student who delivered a high school assembly speech employing “an elaborate, graphic, and explicit sexual metaphor,” id., at 678. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. 478 U. S., at 679-680. This Court reversed, holding that the school was “within its permissible authority in imposing sanctions … in response to [the student's] offensively lewd and indecent speech.” Id., at 685. Two basic principles may be distilled from Fraser. First, it demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. See, id., at 682-683. In school, however, his First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506. Second, Fraser established that Tinker’s mode of analysis is not absolute, since the Fraser Court did not conduct the “substantial disruption” analysis. Subsequently, the Court has held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights … at the schoolhouse gate,’ … the nature of those rights is what is appropriate for children in school,” Vernonia School Dist. 47J v. Acton, 515 U. S. 646 , and has recognized that deterring drug use by schoolchildren is an “important–indeed, perhaps compelling” interest, id., at 661. Drug abuse by the Nation’s youth is a serious problem. For example, Congress has declared that part of a school’s job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The “special characteristics of the school environment,” Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.
So as long as the school or the courts disagree strongly enough with the content of the speech, they can restrict it. Mr. Orwell, call your office. Roberts goes to great lengths to establish that the “pro-drug interpretation” of the banner, as opposed to any other possible interpretation, is the correct one, which means he is essentially arguing that anything a student might say that is “pro-drug use” can be censored by the school. He does make a fleeting reference to making a distinction between advocating drug use and advocating a political position about, say, drug legalization:
Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14-16, this is plainly not a case about political debate over the criminalization of drug use or possession.
There are two problems with this. First, humorous or satirical statements like the one Frederick made have historically been used as political statements in a myriad of ways. Indeed, satire as political activism can be described as an American tradition, from political cartoons to Mark Twain to Paul Krassner and the Merry Pranksters. One can certainly imagine Abbie Hoffman wearing a t-shirt that said “bong hits for Jesus” on it to make a political statement against the government’s constant “say no to drugs” propaganda. The notion that one can draw the line so easily between political statements and amusing ones about political issues is clearly false. Second, how easy would it be for a school principal to decide that a pro-legalization t-shirt is really a pro-drug t-shirt?
The silliest part of the ruling is that Roberts claims that he bases his ruling on “the special characteristics of the school environment”, yet his rationale for why this particular statement can be censored has nothing to do with the school environment. His rationale is that drugs are bad and that the government has an interest in seeing drug use reduced. But that has nothing to do with the “special characteristics of the school environment” at all. If that rationale is correct then the government has the same interest in censoring such messages outside of school as well, at the mall or even in the home.
This ruling is much broader than I expected. I expected a narrow ruling in the school’s favor, one that perhaps said something like this: “This was an official school event where students could reasonably expect to follow the normal school rules. Just as a student could not unfurl such a banner during a school assembly or during class time, such behavior was disruptive of the event taking place and the school reasonably took action to stop that disruptive behavior.”
Frankly, i would have been okay with a ruling like that. But this ruling is far broader and is explicitly based on the content of the speech, the fact that it allegedly advocates drug use. That is what disturbs me about the ruling. If the school can censor any speech that it deems to be contrary to an important societal message, as this ruling clearly gives them grounds to do, there is a serious danger of quelling speech that merely advocates a position the school does not like. Indeed, that is precisely what happened here. The Court said, in effect, “we think doing drugs is bad and therefore you don’t get to express a contrary message.” That is clearly contrary to the first amendment.
Even worse than the Roberts controlling opinion is Justice Thomas’ concurring opinion, in which he says bluntly that the first amendment does not apply to students in school at all:
The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” In my view, the history of public education suggests that the First Amendment , as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment , public schools had become relatively common. If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not.
An extraordinary statement for anyone to make, but especially for an African-American to make. After all, his logic applies perfectly to the subject of the Jim Crow laws, which courts refused to do anything about for at least half a century after the Civil War. Does that mean such laws must be constitutional? Of course not. They were clearly unconstitutional regardless of whether the courts previously attempted to rectify them. An abysmal argument and very disappointing coming from Thomas of all people.