In a 5-4 Supreme Court decision this past Monday, Chief Justice Roberts decided to take a narrow view of the First Amendment's free speech clause, and allow government officials to punish a student for holding up a hilarious sign off school property, as the Olympic torch passed on the streets of Alaska.
In 2002, the Winter Olympic Torch Relay was set to pass through the city of Juneau, Alaska. Joseph Frederick did not even show up for school that day, which had dismissed its students so that they could watch the torch pass, or wander off at their pleasure. Frederick was not on school property, but had gathered nearby with some friends. When the television cameras turned on, Frederick unfurled a 14-foot banner saying "BONG HiTS 4 JESUS." Deborah Morse, the school's principal, raced across the street and ordered the students to take down the banner. Frederick did not comply, and the banner was snatched from his hands. Morse suspended Frederick for five days, but doubled the suspension to ten days after Frederick quoted Thomas Jefferson on free speech.
The Supreme Court has consistently held that you do not forfeit your First Amendment rights when you enter a school zone. Nonetheless, the Supreme Court has, in past cases, allowed teachers to discriminate in school newspapers with regard to what student speech it will positively endorse (Hazelwood School District v. Kuhlmeier). It has also allowed school officials to discipline students for disrupting school assembly events by giving clearly disruptive and sexually explicit speeches to large student audiences on school property (Bethel School District No. 403 v. Fraser). However, in its majority opinion, the court here doesn't argue that this speech would lead bystanders to think that the school endorses taking bong hits. Nor does the court argue that the speech here was offensive and disruptive. That's good, because both of those positions are untenable. However, the Roberts opinion does carve out a new area where schools can suppress student speech: where it can reasonably be seen by a third party as promoting illegal drug use. Drug use is apparently so horribly, awfully bad that we have to squash speech that might have a positive tilt on marijuana use.
The court talks a lot about "illegal drugs" (the opinion uses this general term to draw on images of kids on PCP rather than the simple marijuana to which the sign referred) and how teachers have an "important - indeed, perhaps compelling" government interest in preventing "severe and permanent damage to the health and well-being of young people." But in reality, this banner was no more damaging to students than a sign saying "HOMER SIMPSON DRINKS BEER." That is to say, there is no harm at all, let alone a compelling interest sufficient to overcome the First Amendment's free speech guarantees.
All in all, I'd say that this was a very disappointing opinion. At least they didn't take Justice Thomas's super-restrictive approach by overturning Tinker and doing away with student speech rights altogether.
The Alito/Kennedy concurring opinion was at least a little better. They ultimately agreed with Roberts, but added that they wouldn't restrict speech that can plausibly be interpreted as a comment on social or political issues, including "the wisdom of the war on drugs or of legalizing marijuana for medicinal use." But still, I see no compelling basis for restricting speech that's incidentally favorable to the idea of doing drugs. And under our First Amendment, you should really have a very compelling reason for punishing someone's speech.
Documents:
- 9th Circuit Decision
- Petitioner's Brief
- Respondent's Brief
- Amicus Brief for the Alliance Defense Fund
- Amicus Brief for ACLJ
- Amicus Brief for Center for Individual Rights
- Amicus Brief for Christian Legal Society
- Amicus Brief for Drug Policy Center
- Amicus Brief for Lambda Legal Defense and Education Fund
- Amicus Brief for Liberty Counsel
- Amicus Brief for Liberty Legal Institute
- Amicus Brief for National Coalition Against Censorship
- Amicus Brief for Rutherford Institute
- Amicus Brief for Student Press Law Center
- Amicus Brief for Students for Sensible Drug Policy
- Supreme Court Oral Arguments
- Supreme Court Decision
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