Could be any day now for the decision in this Supreme Court case. Will it be a victory for free speech and the rights of students to have a life that isn’t controlled by the schools? Will it be the beginning of a drug war exception to the first amendment and establish the right of schools to censor anything that doesn’t fit what they determine to be the correct message? Or will it be something else entirely?
Note: For those who would like a quick refresher in constitutional law, read this funny piece by Walter Dellinger, wherein he is, sadly, able to boil down Supreme Court jurisprudence to its bare essence.
Update: Bong Hits case opinion not released today. They’re taking their time with it.
Further update: I was wrong (ScotusBlog was wrong for a moment as well, which is where I got my mistake). It’s decided, and it’s not great (but it’s not really that bad, either).
Justices ruled that “Bong Hits 4 Jesus” was advocating illegal drug use, the unfurling of the banner was related to a school activity, and that the principal was in her rights to censor speech that advocated or “celebrated” illegal drug use. However, the decision was narrow…
Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:
I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’Š
The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school‰s ‹educational mission.Š See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.
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 Chief Justice’s opinion, too, indicates that the case would have come out differently if the banner had “convey[ed] any sort of political or religious message,” such as that involved in “political debate over the criminalization of drug use or possession,” rather than (in the Court’s view) mere “student speech celebrating illegal drug use.”
Debate, political and religious messages — protected. “Celebration” of illegal activity (drug use, anyway) — no go. That’s the upshot.
The fact that the court specifically said that it does not support restriction of speech “on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'” is an important victory. That protects the creation of SSDP chapters, etc.
The really odd thing about this case is that the Supreme Court of the United States of America has now apparently ruled that a bunch of guys in robes knows what the phrase “Bong Hits 4 Jesus” means, and that it specifically advocates illegal drug use.
Update: Justice Thomas’ concurrence is odd and rather frightening. He doesn’t believe that students have any free speech rights at all.
Breyer in his dissent in part, concurrence in part says that the Court should have ruled that the Principal wasn’t liable for damages since she was acting in good faith, but that the Court shouldn’t have ruled at all on the First Amendment issue.
Stevens, Souter and Ginsburg dissented:
I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS‰s rule prohibit-ing willful conduct that expressly ‹advocates the use of substances that are illegal to minors.Š App. to Pet. forCert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.
In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amend-ment in upholdingÖindeed, laudingÖa school‰s decision to punish Frederick for expressing a view with which it disagreed. […]
it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectivelyÖand not very reasonablyÖthinks is tantamount to express advocacy. […]
To the extent the Court independently finds that‹BONG HiTS 4 JESUSŠ objectively amounts to the advocacy of illegal drug useÖin other words, that it can most reasonably be interpreted as suchÖthat conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court‰s feeble effort to divine its hidden meaning is strong evidence of that. […]
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.
And check out this amazing passage in the dissent:
Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans‰ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920‰s and early 1930‰s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggestingÖhowever inarticulatelyÖthat it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.