Activist Judges
The Supreme Court further restricts a student's free speech rights, even as he speaks from a public sidewalk at a public event. The restriction apparently has very little to do with school discipline, safety or order but a "latent" message promoting drug use. Now, a student can be expelled from his public high school for unfurling a banner on a public street at a public event based solely on the banner's content.
Welcome to the revolution, originalists.
Update: As a law professor, I should repent of the foregoing message and provide a bit more analysis, instead of knee-jerk reaction to a CNN piece.
Here is the opinion for Morse v. Frederick, -- U.S. -- (2007).
I disagree with Judge Robert’s majority in this case, not because of its factual determinations that this is a school speech case or that the banner, “BONG HiTS 4 JESUS” somehow implicated drug use. I do not agree that the most reasonable interpretation of this 14 foot banner on a parade route advocates illegal drug use by high school students. As Justice Stephens notes in the dissent, “Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.”
Although the majority goes too far, Justice Alito’s concurrence demonstrates a sounder basis for the outcome in the school’s favor. Here is his right-thinking, but naïve, view of the majority’s rule:
The problem with Justice Alito’s fair reading of the law is that his rule does not apply to these facts, so that the majority actually is promoting the extension of infringement that he chooses to ignore.
In this case, the kid’s banner was a bad joke, a play for attention, nothing like a black arm-band protest to the Vietnam War. This was a stoner’s good idea of a gag in his senior year. Despite the weakness of this speech, he presented no danger whatever to his classmates, the school, its educational mission, and he certainly did not promote drug use to anyone who is not already toking in Alaska in the winter.
I have sympathy for the principal confiscating the banner, but I have none for the 10 day suspension. The majority says that it is making no new law and to parse whether the banner actually is advocating drugs is missing the point because of the school’s reasonable policy and the principal’s quick thinking. The message, however, makes all the difference. In short, the State of Alaska punished a high school student for the content of his speech that posed no threat to anyone or anything but the school’s reputation and principal’s sensibilities. That is unconstitutional infringement of the First Amendment.
The student was bound to lose this case before this Supreme Court. The Roberts Court would be loath to let the Ninth Circuit set speech precedent, especially regarding pot. The kid’s weakness in his case is that no one else had a banner at the Torch Relay. If other students had other, unauthorized, homemade banners, the content persecution would be more pronounced. His greatest weakness, however, is making his stand on such a ridiculous, penny-ante sign with no message at all.
If the Supreme Court is not permitting school’s to censor all drug-related speech, it at least is permitting schools to censor really stupid speech, and that certainly is a very slippery slope.
If I were teaching this case socratically, I would pose these questions. Respond at will.
(Speaking of originalists, Justice Thomas gets pretty crazy in his concurrence. Because colonial schools were almost universally private when the First Amendment was ratified and because 19th century public schools did not provide any recognizable free-speech to its students when the Fourteenth Amendment was ratified, then the Constitution does not provide any free speech rights to students in public schools at all. Have a nice day!)
Welcome to the revolution, originalists.
Update: As a law professor, I should repent of the foregoing message and provide a bit more analysis, instead of knee-jerk reaction to a CNN piece.
Here is the opinion for Morse v. Frederick, -- U.S. -- (2007).
I disagree with Judge Robert’s majority in this case, not because of its factual determinations that this is a school speech case or that the banner, “BONG HiTS 4 JESUS” somehow implicated drug use. I do not agree that the most reasonable interpretation of this 14 foot banner on a parade route advocates illegal drug use by high school students. As Justice Stephens notes in the dissent, “Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.”
Although the majority goes too far, Justice Alito’s concurrence demonstrates a sounder basis for the outcome in the school’s favor. Here is his right-thinking, but naïve, view of the majority’s rule:
For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting. The special characteristic that is relevant in this case is the threat to the physical safety of students. School attendance can expose students to threats to their physical safety that they would not otherwise face. Outside of school, parents can attempt to protect their children in many ways and may take steps to monitor and exercise control over the persons with whom their children associate. Similarly, students, when not in school, may be able to avoid threatening individuals and situations. During school hours, however, parents are not present to provide protection and guidance, and students' movements and their ability to choose the persons with whom they spend time are severely restricted. Students may be compelled on a daily basis to spend time at close quarters with other students who may do them harm. Experience shows that schools can be places of special danger.
In most settings, the First Amendment strongly limits the government's ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker's "substantial disruption" standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508-509.
Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
The problem with Justice Alito’s fair reading of the law is that his rule does not apply to these facts, so that the majority actually is promoting the extension of infringement that he chooses to ignore.
In this case, the kid’s banner was a bad joke, a play for attention, nothing like a black arm-band protest to the Vietnam War. This was a stoner’s good idea of a gag in his senior year. Despite the weakness of this speech, he presented no danger whatever to his classmates, the school, its educational mission, and he certainly did not promote drug use to anyone who is not already toking in Alaska in the winter.
I have sympathy for the principal confiscating the banner, but I have none for the 10 day suspension. The majority says that it is making no new law and to parse whether the banner actually is advocating drugs is missing the point because of the school’s reasonable policy and the principal’s quick thinking. The message, however, makes all the difference. In short, the State of Alaska punished a high school student for the content of his speech that posed no threat to anyone or anything but the school’s reputation and principal’s sensibilities. That is unconstitutional infringement of the First Amendment.
The student was bound to lose this case before this Supreme Court. The Roberts Court would be loath to let the Ninth Circuit set speech precedent, especially regarding pot. The kid’s weakness in his case is that no one else had a banner at the Torch Relay. If other students had other, unauthorized, homemade banners, the content persecution would be more pronounced. His greatest weakness, however, is making his stand on such a ridiculous, penny-ante sign with no message at all.
If the Supreme Court is not permitting school’s to censor all drug-related speech, it at least is permitting schools to censor really stupid speech, and that certainly is a very slippery slope.
If I were teaching this case socratically, I would pose these questions. Respond at will.
1. What difference would more and varied student banners have made at this event?
2. As the dissent ponders, what if the message were “WINE SiPS 4 JESUS” which reasonably could be a religious message, even if underage drinking is illegal?
3. Would the school have been on stronger ground to ban all banners and signs meant for TV?
4. What if Frederick and his friends had chanted the message when the camera crews rolled by instead of writing it largely? Would the principal have been justified in the 10 day suspension?
5. Does the majority’s rule permit a school district in similar circumstances for punishing a student for a sign that said:
“The Olympics Suck!”
“Pot 4 Life (and Cancer Treatment)!”
“Blow the Torch”
“Osama bin Ladin is Coming!”
“JDHS IS THE WORST SCHOOL IN ALASKA!”
6. Does the majority’s rule permit a school to censor a student in a school sanctioned debate to advocate recreational pot use as a political statement?
(Speaking of originalists, Justice Thomas gets pretty crazy in his concurrence. Because colonial schools were almost universally private when the First Amendment was ratified and because 19th century public schools did not provide any recognizable free-speech to its students when the Fourteenth Amendment was ratified, then the Constitution does not provide any free speech rights to students in public schools at all. Have a nice day!)
posted by JRB at 10:51 AM
7 Comments:
I am still trying to wrap my head around this one. If the banner had been unfurled at a school rally in the auditorium this would have been a slam dunk for the school. But allowing the public school to censor speech that occurs outside of the school building, off the school grounds, and during a time when school had been dismissed is going a little too far.
I also wholeheartedly agree with JRB in that this banner was not promoting illegal drug use. My best friend in high school had a bumper sticker that said "Nuke Gay Whales for Jesus". If we had decided to unfurl that banner while the Olympic torch had passed through Salem Illinois would our principal have been justified to require us to rip it down because we were trying to incite nuclear war. Of course not. Nonsense should be treated as such, and it just so happens that nonsense is protected speech.
Despite, as JRB has already mentioned, this court's majority not wanting to allow the 9th circuit to set free speech precedent I am actually suprised by how this one came down.
I can understand how the banner could be interpreted as praising illegal drug use, or at least taking the kind of lighthearted attitude toward it that would be at odds with school policy. I doubt anyone would have been persuaded to do drugs because of the banner, but praise need not stand any chance of success to qualify as praise.
I also would be reluctant to find that this is not a school speech case, just because the kid was not on school property or sitting in a lecture hall somewhere. Public school teachers often accompany their students off campus during the school day for various field trips, etc., and the teachers have to be allowed to enforce the rules in those situations, just as they would in the halls of the school. This could reasonably be viewed as one of those situations, I think, although if I were a parent of a kid in that district I would have been upset that the school deemed this media event worthy of class dismissal (what is the educational value of drinking Coke and watching a torch pass by?).
In my view, the main problem with the majority opinion is that, without any support in precedent, the Court basically just carves out another exception for student speech regulations. Before this case, the general rule was that public school officials can't restrict student speech unless it substantially threatens to keep students from getting educated at school. The exception was student speech that is grossly vulgar or lewd, which could be banned even if it didn't keep classes from proceeding normally. Now the Court says, well, now there's another exception: speech promoting illegal drug use.
There are several problems with this approach, but first and foremost, with only a little imagination one might easily come up with several other categories of speech that Roberts & Co. might want school officials to be able to ban, for much the same reasons. In other words, if speech praising illegal drug use poses such a danger to kids, how about, e.g., speech praising abortion? Or racism? (confederate flag shirts, anyone?) Or homophobia? Or unsafe sex? Or McDonald's Big Macs? Or smokeless tobacco? Or failure to exercise?
Lower courts are still left without much guidance on most school speech questions, although they will no doubt feel comforted by this opinion in any case involving student praise of illegal drugs. (In fairness, this opinion was better than it could have been; the Court at least says schools can't ban speech just because it is "offensive" and runs contrary to some part of the school's stated mission. So there's a little guidance, but only in a part of the opinion that didn't control the outcome.) But what about all the other student speech cases? Does the Court plan to create more and more new categories of proscribable speech in future cases? There doesn't seem to be any logical stopping point to this process, mostly because the Court hasn't provided the theoretical underpinnings for going down the "ad hoc exceptions road" in the first place.
I too am puzzled as to why speech which advocates drug use is an exception to general viewpoint neutral requirements. Afterall, I think speech advocating lawless action is covered perfectly well by Brandenburg, or else rely on other viewpoint neutral criteria (i.e., disruptive effect).
The Court seemed to rely on the whittling effect drug cases have had on 4th amendment jurisprudence. Drug use has been recognized as so bad that it justifies greater deference to government authority in the 4th amendment context. It is no great leap to apply the same deference to school-speech.
Not a very satisfying explanation.
Here is another interesting observation about Morse, that the government's hysterical obsession with the war on drugs, especially marijuana, has fundamentally changed the nature of public education and government:
http://prawfsblawg.blogs.com/prawfsblawg/2007/06/billions-for-bo.html#more
Andy said, ". . . but praise need not stand any chance of success to qualify as praise."
I agree with the balance of your observations, but this statement falls into the very problem J. Roberts creates here. Not only does this particular speech invite a thousand interpretations or none, its very characterization turns the entire case. This is the worst form of content discrimination, choosing one of a myriad meanings to justify the outcome. Roberts goes so far in the majority to ADD WORDS to the message to make it fit within the school's policy and to fit in the theorectical construct.
For these problems, you are precisely right that this case provides only confusion and no useful standard for schools and students. Even regarding drug-related content, how could anything other than this precise message be governed by this opinion?
I'm not saying the banner can only be interpreted one way. What I am saying is that I have no trouble believing the message on the banner, whatever it is, was contrary to school policy. That's because I take it that school policy essentially says, "If you're going to mention bong hits in public, you better clearly express opposition to them." This banner, whatever it meant, did not do that.
I agree that the Court's interpretation of the banner's meaning is somewhat problematic, but I think it is far from the central problem in the opinion, and I'm not so sure the precise characterization of the message is what the entire case turns on. Whether the message was "promoting" illegal drug use, "praising" illegal drug use, or merely making light of illegal drug use, or even making a political argument about the legality of drug use, I have no trouble believing the school would view it as in tension with their policies about illegal drug use. The question is, should that be enough to allow the school to shut the student up? And I guess the Court's answer is, if the subject is illegal drug use, then yes, unless the speech clearly pertains to governmental policies or laws.
Andy&JRB,
Do you all think that Justice Bryers arguments should have carried the day? In his concurrence/dissent he argues that the Court should have decided the partial immunity question and then stopped. To me that seems like wisest course of action here.
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