DO HIGH SCHOOL STUDENTS' RIGHTS OF FREE SPEECH STOP AT THE SCHOOL HOUSE GATE?

One of the major decisions of the U.S. Supreme Court for this term is Morse vs. Frederick, a case that tests a student's right to free speech in a high school setting.

Writes Chief Justice Roberts:

"At a school-sanctioned and school supervised setting, a high school principal saw some of her students unfurl a large banner convey a message she reasonably regarded as promoting illegal drug use. . . We hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it."

But to understand the case and see if Roberts got it right, we need to know what the banner said. "BONG HiTS 4 JESUS." That was it. According to the school superintendent, the poster "is a reference to a means of smoking marijuana." Furthermore, the superintendent concedes the student "was displaying a fairly silly message . . ." But the message was "promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the [event]."

The question is whether "BONG HiTS 4 JESUS" should be read as "promoting illegal drug usage," as both the school principal, school superintendent and Chief Justice Roberts seem to think.

Or is it free speech, uttered by a student, that does not promote anything, much less "illegal drug usage," and protected under the First Amendment?

Justice Stevens writes a stinging and well-reasoned dissent to Roberts, and the other four who joined the Chief Justice in the Court's decision (Scalia, Alito, Kennedy and Thomas). Stevens bases his dissent on the famous case in 1969, Tinker vs. Des Moines Independent Community School District, where students showed up at school with black armbands to protest the VietNam War. Tinker ruled that students do not lose their right of free speech when they enter the school house door. Stevens even brings up a quote of Justice Alito from a case decided when Alito was on the Third Circuit Court of Appeals, in which Alito then defended a student's right to free speech in school provided the speech was not disruptive:

"[R]egulation of student speech is generally permissible only when the speech would substantially disrupt of interfere with the work of the school or the rights of other students . . . Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance."

Stevens takes a common sense look at the message of the poster and finds it obscure and nonsensical:

"But 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 subjectively - and not very reasonably - thinks is tantamount to express advocacy. . . . To the extent the Court independently finds that 'BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use - in other words, that it can most reasonably be interpreted as such - that conclusion practically refutes itself. This is a nonsense message, not advocacy."

Stevens finds the Roberts decision itself nonsensical because the Court seems to be ruling that any message regarding drug use is prohibited and not protected by the First Amendment if someone else subjectively perceives the message as encouraging illegal drug use:

"Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message."

Stevens ends his dissenting opinion with a call to open dialog and speech not matter how controversial the topic:

"In the national debate about a serious issue, it is the expression of the minority's viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular."