It’s the final week of this term of the Supreme Court, and some big decisions have come down the pipe this week with the last batch to follow tomorrow.
I looked at Morse v. Frederick (“BONG HiTS 4 JESUS” – First Amendment: school speech) trying to make sense of the fractured spate of opinions…
In Morse, students were allowed out of Juneau, Alaska high school to view a leg of the Olympic Torch Relay passing through town in 2002, purportedly as a school field trip. On the sidewalk opposite school property, some students unrolled a large banner containing the message “BONG HiTS 4 JESUS.” Principle Morse intervened, demanding the banner be taken down. One student, plaintiff Frederick, refused. Morse tore down the banner and Frederick was subsequently suspended for 8 days.
The Ninth Circuit reversed Frederick’s failure at the District Court level, finding a First Amendment violation (because the school had not shown the “threat of a substantial disruption”), and disallowing a claim of qualified immunity by the principal on the grounds that a reasonable principal should have known tearing down the sign was a First Amendment violation.The Supreme Court granted cert for Morse’s appeal. The Justices split five ways, with the controlling opinion dictated by two Justices (a fact ignored, glossed over or missed entirely by many commentators).
Here is the breakdown:
Roberts authored the purported Opinion of the Court, “fully” joined by Scalia. The thrust of the opinion is the carving out of a new category of proscribable speech in a school setting: speech advocating drug use. Hinted at (and subsequently rejected by Alito and Kennedy’s limitation) is that any message contrary to the school’s educational mission can be prohibited. Roberts justifies the departure from the standards of Tinker v. Des Moines (1969) by relying on another school speech case, Bethel School District v. Fraser (1986), which implies the Tinker principles are not absolute.
Thomas joined the Opinion of the Court, but wrote separately to advocate a strict, old-fashioned in loco parentis view of school authority over students, and claiming that the modern First Amendment principles set out in Tinker v. Des Moines (Vietnam armband case) had no basis in the Constitution. He lists old, pre-Tinker cases that, while supporting his argument, are beyond the pale by modern standards. Most damning is Wooster v. Sunderland (1915):
[T]he California Court of Appeal upheld the expulsion of a student who gave a speech before the student body that criticized the administration for having an unsafe building “because of the possibility of fire.” Wooster v. Sunderland, 27 Cal. App. 51, 52, 148 P. 959, (1915). The punishment was appropriate, the court stated, because the speech “was intended to discredit and humiliate the board in the eyes of the students, and tended to impair the discipline of the school.”
By today’s standards, the expelled student would clearly be vindicated in his First Amendment complaint, and rightly so by any understanding of free speech and its impact on good public policy.
Alito authored a separate opinion joined by Kennedy, which is actually the controlling opinion in the case. Therein, Alito and Kennedy condition their joining of the Opinion of the Court on the limiting of that decision:
[We] join the opinion of the Court on the understanding that (a) it goes no further than to 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.” [rejecting any broader "educational mission" justification]
Alito also pauses to beat up Thomas’s in loco parentis argument:
When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State.
Breyer writes separately and technically numbers among the dissenters. In Breyer’s opinion the Court should rule that the principal (Morse) had qualified immunity and no money damages to Frederick were justified. Breyer would not reach the merits of the free speech issue, and from parsing his opinion, it is reasonably clear he would reject the logic of Alito’s controlling opinion:
[W]hile the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. … [I]t is unclear how far the Court’s rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick’s banner had read “LEGALIZE BONG HiTS,” he might be thought to receive protection from the majority’s rule, which goes to speech “encouraging illegal drug use.” Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws. [emphasis mine]
I have to agree with Breyer that the qualified immunity angle seems reasonable, as does putting off a decision on the merits in such a weird [the Court's word, not mine] scenario. For a principal seeing the subject banner, I cannot myself fathom how he or she could reach the conclusion that removing said banner – drug themed in a school setting – would be unconstitutional. There is some technical glitch with the immunity argument. Breyer states his case for wiggling around it, and Alito isn’t satisfied with Breyer’s argument – but if you’re really interested in this coma-inducing tidbit you’ll have to read the opinion.
Finally, Stevens authors the compelling dissent, joined by fellow liberals Souter and Ginsburg. Stevens main point is that “punishing someone for advocating illegal conduct [if the banner does such, which he disputes] is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid.” Mere advocacy has never been equated with incitement to imminent lawless action.
“[P]romoting illegal drug use,” … comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg, 395 U. S., at 447. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship:
“Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. . . Advocacy of law-breaking heightens it still further. But even advocacy of violation, however rep-rehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” Whitney v. California, 274 U. S. 357, 376 (1927) (Brandeis, J., concurring).
No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York, 268 U. S. 652, 673 (1925) (dissenting opinion).
…[J]ust as we insisted in Tinker that the school establish some likely connection between the armbands and their feared consequences, so too JDHS must show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.
But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky…. On occasion, the Court suggests it is deferring to the principal’s “reasonable” judgment that Frederick’s sign qualified as drug advocacy. At other times, the Court seems to say that it thinks the banner’s message constitutes express advocacy. Either way, its approach is indefensible.
To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg, 395 U. S., at 447–448, yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.
Such a peculiar doctrine is alien to our case law.
Two other important First Amendment cases came down on Monday:
Federal Election Comm’n v. Wisconsin Right to Life, Inc. (Political speech, campaign finance reform – loosening restrictions on issue-based “attack” ads)
Hein v. Freedom From Religion Foundation, Inc. (executive branch expenditures on faith-based organizations, no standing for taxpayers to sue.)
Along with these two:
National Assn. of Home Builders v. Defenders of Wildlife (trumping the Endangered Species Act.)
Wilkie v. Robbins (federal harassment – no viable federal causes of action)
I might discuss Wilkie later, since every commentator has ignored it and it has fun facts.
A discussion of the end-of-term cases I’ve enjoyed reading between Dahlia Lithwick and Walter Dellinger can be found on Slate, here.
More on Thursday’s cases soon.
B
About the Author
U.S. Legal Blog is maintained by Bryan Lieb.
