If the justices conclude Joseph Frederick’s homemade sign was a pro-drug message, they are likely to side with principal Deborah Morse. She suspended Frederick in 2002 when he unfurled the banner across the street from the school in Juneau, Alaska.
“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” Chief Justice Roberts said Monday. […]
“It sounds like just a kid’s provocative statement to me,” Justice David Souter said. […]
The outcome also could stray from the conservative-liberal split that often characterizes controversial cases.
Justice Samuel Alito, who wrote several opinions in favor of student speech rights while a federal appeals court judge, seemed more concerned by the administration’s broad argument in favor of schools than did his fellow conservatives.
“I find that a very, a very disturbing argument,” Alito told Justice Department lawyer Edwin Kneedler, “because schools have … defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”
Justice Stephen Breyer, in the court’s liberal wing, said he was troubled a ruling in favor of Frederick, even if he was making a joke, would make it harder to principals to run their schools.
“We’ll suddenly see people testing limits all over the place in the high schools,” Breyer said.
On the other hand, he said, a decision favorable to the schools “may really limit people’s rights on free speech. That’s what I’m struggling with.” […]
What if, Souter asked, a student held a small sign in a Shakespeare class with the same message Frederick used. “If the kids look around and they say, well, so and so has got his bong sign again,” Souter said, as laughter filled the courtroom. “They then return to Macbeth. Does the teacher have to, does the school have to tolerate that sign in the Shakespeare class?”
Justice Antonin Scalia, ridiculing the notion that schools should have to tolerate speech that seems to support illegal activities, asked about a button that says, “Smoke Pot, It’s Fun.”
Or, he wondered, should the court conclude that only speech in support of violent crime can be censored. “‘Extortion Is Profitable,’ that’s okay?” Scalia asked.
A clear majority seemed to side with Morse on one point, that she shouldn’t have to compensate Frederick. A federal appeals court said Morse would have to pay Frederick because she should have known her actions violated the Constitution.
More from Reuters
“It’s political speech, it seems to me. I don’t see what it disrupts,” a sceptical Justice David Souter said.
“And no one was smoking pot in that crowd,” Justice Ruth Bader Ginsburg said, referring to the group of students standing near the banner as the Winter Olympic torch relay passed by in January 2002. […]
Justice Anthony Kennedy asked Kneedler if the principal could have required the banner be taken down if it had said “vote Republican, vote Democrat”.
Kneedler replied the principal has that authority.
It’ll be June or July before we have a decision.
- SCOTUSblog, as always, has great analysis: here, here, and here
The Supreme Court on Monday toyed with the notion that public school officials should have added discretion to censor student speech that they may interpret as advocating use of illegal drugs. But this was only a flirtation, not a warm embrace. During the argument in Morse v. Frederick (06-278), a clear majority of the Justices showed significant skepticism about creating a wide exception to the curb on suppression of student speech that the Court spelled out in 1969 in Tinker v. Des Moines School District
As blog colleague Marty Lederman has pointed out in the post below, a sweeping exception to Tinker had the visible support Monday of only Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, who seemed to be competing to lay out the most generous view of officials’ discretion to enforce school-preferred messages.
- Hearing transcript available here (pdf)
- Coverage from PBS