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What Did Morse v. Frederick Do to the Free Speech Rights of Students Enrolled in K-12 Schools?

A few thoughts about the holding of Morse v. Frederick, in which the Court held that a public K-12 school could punish a student for putting up a seemingly pro-marijuana-use sign — a "BONG HiTS 4 JESUS" at a school-sanctioned event (even such an event that's not on school property).

1. Justice Alito, joined by Justice Kennedy, joined the majority opinion but only

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.

Justice Alito's opinion, as the narrowest grounds offered by any of the Justices whose votes were necessary for the majority, thus seems to offer the controlling legal rule.

2. But what does this purported distinction between the speech in clause (a) (restrictable) and the speech in clause (b) (not restrictable) really mean? The trouble is that "speech that a reasonable observer would interpret as advocating illegal drug use" often also "can plausibly be interpreted as commenting on any political or social issue."

Consider, for instance, "legalize marijuana because marijuana is safe and fun." While this doesn't expressly advocate illegal drug use, a reasonable observer might well interpret it as so advocating: After all, the statement does say that marijuana is fun, and fun and safe things are often worth doing. Yet the statement that marijuana is fun is an important part of the comment on the political or social issue. While one might well support legalizing marijuana even if it weren't fun, the claim that marijuana is fun — and thus, implicitly, that people are losing a good deal of pleasure because of the marijuana ban — is an important argument against the ban.

Now consider "marijuana is fun." This doesn't expressly say "legalize marijuana" or even "the panic over marijuana abuse is overrated." But in context, it pretty clearly "can plausibly be interpreted as commenting on [a] political or social issue." It may implicitly take a stand on what the law should be; I'd wager that most people who hear "marijuana is fun" would interpret this as at least partly an endorsement of marijuana decriminalization (in the absence of qualifiers such as "but many fun things should be banned for the greater good"). And surely it comments on a "political or social issue" in the sense of saying something that's pretty directly relevant to the issue — whether marijuana is fun is surely relevant to whether it should be criminalized, though it is hardly dispositive.

Finally, consider "BONG HiTS 4 JESUS," which the majority said (and on this Justice Alito squarely agreed with the majority), "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug,'" or "as celebrating drug use — 'bong hits [are a good thing],'" two messages that the majority saw as constitutionally indistinguishable. It seems to me that these messages "can plausibly be interpreted as commenting on any political or social issue": They implicitly suggest that drug laws are a bad idea ("violate law X" often tends to suggest that, especially as to laws that are quite controversial), which is a comment on a political issue. And they suggest that drug use is a good idea, which is a comment on a social issue.

3. So I think that this distinction is logically unsound, even in this very case. And this unsoundness also makes it hard to see how the distinction will play out in the future. For instance, say that a school argues in favor of restricting anti-gay speech on the grounds that it poses a threat to gay students' "physical safety" by contributing to a culture in which gay-bashing is encouraged and gays are made to feel insecure. (Justice Alito's opinion stresses that the new exception for pro-drug speech is justified by the fact that such speech jeopardizes students' "physical safety," presumably through its persuasive effects.) And say a student wears a T-shirt saying "straight pride," or "homosexuality is an abomination."

Is this a "comment[] on any political or social issue," and thus immune from constitutional punishment, or is this something that a reasonable observer can interpret as advocating (or at least celebrating) hostility towards gays, hatred towards gays, personal insults of gays, or even attacks on gays? I would think it clearly was plausibly interpretable as "commenting on a political or social issue," but "advocating illegal drug use" is also so interpretable. "[C]an plausibly be interpreted as commenting on a political or social issue" doesn't mean what it literally seems to mean. So what then does it mean, and how would it play out as to anti-gay speech?

4. Justice Alito also tries to limit his opinion in another way:

I do not read the opinion to mean that there are necessarily any grounds for such regulation [of K-12 speech] that are not already recognized in the holdings of this Court. In addition to Tinker [which permits the regulation of student speech that threatens a concrete and "substantial disruption"], the decision in the present case allows the restriction of speech advocating illegal drug use; Bethel School Dist. No. 403 v. Fraser permits the regulation of speech that is delivered in a lewd or vulgar manner as part of a middle school program; and Hazelwood School Dist. v. Kuhlmeier allows a school to regulate what is in essence the school's own speech, that is, articles that appear in a publication that is an official school organ. I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.

So this is a narrow exception, which shouldn't be read beyond "advocating illegal drug use." But then Justice Alito stresses that the reason for this exception is that "Speech advocating illegal drug use poses a threat to student safety, and "illegal drug use presents a grave and in many ways unique threat to the physical safety of students."

What, doesn't illegal alcohol use by minors also pose a serious threat to student safety? How about just reckless driving by minors? Unprotected sex by minors, which can lead to sexually transmitted diseases — including deadly ones — as well as pregnancy, which threatens many girls' futures even if not their lives?

And, returning to the example from item 3, condemnation of certain sexual orientations, which can help foster a climate in which physical attacks on students of those orientations are permissible — or perhaps can even lead to depression that could lead to physical harms, including suicide? Perhaps one can argue that the latter is a lesser problem than the others; but that's far from obvious, it seems to me. The logic of Justice Alito's opinion thus suggests that there would indeed be grounds for regulation of at least some K-12 speech that goes beyond Tinker, Fraser, Kuhlmeier, and "speech advocating illegal drug use."

True, the majority opinion and Justice Alito's opinion don't necessarily offer grounds for regulation of any speech other than the speech Justice Alito mentions in the block quote. Very little necessarily follows from one opinion. But surely the logic of the "threat to student safety" argument substantially strengthens the case for regulating other kinds of speech, no? If so, what exactly does Justice Alito's assertion give us.

5. Finally, if Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected, many of my objections above would no longer be apt. There might be other objections — for instance, how would one tell whether harsh condemnation of homosexuality could reasonably be seen as endorsing attacks on homosexuals, or at least illegal discrimination based on sexual orientation? But maybe on balance these objections would be surmountable, and perhaps we should tolerate far broader restrictions of K-12 speech than we do now. (I hope to blog a little more about Justice Thomas's opinion, which frankly endorses very broad toleration of such restrictions.) And at least we wouldn't have what strikes me as a false distinction between "speech that a reasonable observer would interpret as advocating illegal drug use" and speech that can plausibly be interpreted as commenting on any political or social issue."

The trouble is that the controlling opinion wasn't framed this way. And the way it was framed strikes me as quite unsound, and hard to interpret sensibly.

UPDATE: Just to make clear, paragraph 5 refers to the hypothetical in which "Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected" -- simply, without any qualifiers such as that the Court's opinion "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."

If one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue other than by advocating or endorsing illegal conduct," that isn't consistent with the rest of Justice Alito's opinion, which seems to limit the new exception to advocacy of illegal drug use (and perhaps a few other especially dangerous forms of illegal conduct). If one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue other than by advocating or endorsing illegal drug use," that just strikes me as an odd interpretation of Justice Alito's language.

But in any event, either of these interpretations would still pose the problems I identified in 2: The same speech may both plausibly be interpreted as commenting on a political or social issue other than by advocating or endorsing illegal conduct and plausibly be interpreted as advocating or endorsing illegal conduct. Consider "marijuana is safe and fun," which can both plausibly be interpreted as opposing the ban on marijuana and as endorsing drug use.

Finally, say one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue except when the speech can also plausibly be interpreted as advocating or endorsing illegal drug use" -- which is to say that speech is stripped of protection if one plausible interpretation is advocacy or endorsement of illegal drug use, even if another plausible interpretation is advocacy of changing the law.

That still seems like an odd interpretation of the text, but in any event it ends up being quite strikingly broad: After all, "decriminalize marijuana, because marijuana is safe and fun" may well be interpreted as advocating or endorsing marijuana use as well as arguing for a change in the law. Yet that presumably would be "speech on issues such as 'the wisdom of the war on drugs'" -- one important argument for ending the war on marijuana -- and thus the very sort of speech that Justice Alito seeks to assure us remains protected. So it seems to me that whatever qualifiers one tries to read into the controlling opinion, the conceptual internal contradiction at the heart of that opinion still remains.

cfoster (mail):
I would have ruled that the school may ban behavior that is
disruptive.
6.26.2007 1:41am
John Herbison (mail):
What if a student, at a school-sponsored talent show, sang "Puff the Magic Dragon"?
6.26.2007 1:54am
cfoster (mail):
What would be the standard of review if the trial court regarded it as encouraging illegal drug use?
6.26.2007 1:58am
OrinKerr:
Eugene writes:
Finally, if Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected, many of my objections above would no longer be apt.
I am no First Amendment expert, but that is how I read Alito's opinion when I read it this afternoon. I assumed that "commenting on any political or social issue" means expressing an opinion beyond advocating or endorsing illegal conduct. So a message like "do drugs" would be unprotected, a message like "drugs should be legalized because they're great" would be protected, and a mixed message like "do drugs because they're great and should be legalized" would depend on how they would be reasonably construed in context.
6.26.2007 1:58am
michael (mail) (www):
Let us imagine that the student decided to share his happy message the next day in front of a school in the next town the next day as the Torch parade went by and students were out. The students there would have thought, 'Boy, you want to lose your ability to sequence your thoughts and actions that bong stuff is for you.' By being at his own school, the kids likely thought, in so many words, 'That really upstages the school's antidrug message; makes it seem Christian or something.' And by not acting the principal would have tacitly accepted this message. So the message and impact depended on the upstaging of the principal which would seem to fall under Judge Fortas ruling re: accepting a requirement for order and discipline in the school.
6.26.2007 2:08am
whig (www):
How about END CANNABIS PROHIBITION, JESUS SMOKED POT

Would that be constitutionally protected political/religious speech in this context?

My thoughts on the case here.
6.26.2007 2:22am
randal (mail):
It's very simple: Alito sought to reach his preferred policy outcome. Such decisions are often marked by illogical reasoning and a frantic attempt to avoid setting broad precedent.

What does this mean for K-12 free-speech rights? It's a good idea for kids to understand the political idologies of the sitting justices.
6.26.2007 2:59am
Dave Hardy (mail) (www):
1. At least he limited the thing.

2. I could see (I'd have to spend a lot more time thinking about this than I have available before saying this is a valid boundary) in a K-12 situation drawing a line between advocating illegality and opposing making something illegal. Harder to see where the boundary is illegal drugs as opposed to illegal anyting else, but maybe he's just keeping his options open.

3. I tend to see the fairest reading of the poster as a clumsy attempt to be funny, just as the proverbial bumper sticker "Nuke the Gay Whales for Jesus" was meant to throw everyone for a loop, not to advocate a nuclear strike, kill whales of the gay persuasion, nor suggest that the result would be pleasing to the almighty.
6.26.2007 3:19am
KingOfMyCastle:
I accidentally posted to the older bong hits for jesus thread earlier.

Doesn't this just highlight how bad an idea it is to have government run education?

All of these little constitutional quandries (free speech, prayer/religious freedom at school) are caused by the unforseen (at the drafting of the Con.) takeover of education by the government.

If these rights are SO important to students and their development, then someone please explain to me why it's acceptable to leave private school students rights unprotected. The ONLY reason that there is a debate about free speech rights of children is because the government became involved with education.

This is just a silly argument to be having. And the only reason we are having it is because we brought government into the school management business.
6.26.2007 4:19am
ReaderY:
One of the difficulties of middle-of-the-road concurring opinions that depend heavily on the specific facts of the case is that they risk appearing as nothing more than the constitutionalization or a judge's personal, sometimes idiosyncratic-seeming, opinion about the particular merits of one set of facts vs. another.

One is reminded of O'Conner's opinion in the Oregon v. Smith peyote case, in which O'Conner said that deterring illegal drug use represented a compelling state interest specially justifying the Free Exercise clause. Traditionally, compelling interests were limited to things like wars, epidemics, and other matters threatening the immediate survival of society and the state. To extend the concept of compelling interests much beyond this limited circle risks elevating a judge's personal, perhaps idionsyncratic priorities onto the national stage in a way that could ultimately backfire and weaken respect for the law.

I also agree that coming up with a more general framing of the distinction seems to create difficulties. A prohibition on "advocating illegal conduct without advocating its legalization" would at least be clear, but is it really a useful distinction for protection to depend on nothing more than whether the word "legalize" is scribbled in in crayon? ("Bong Hits 4 Jesus" unprotected, "Legalize Bong Hits 4 Jesus" protected).

Attempt to create and maintain a set of law that relies on this or similar fine distinctions risks, as Justice Breyer points out, unduly involving lawyers and courts in ordinary school disciplinary matters, as well as creating a bevy of distinctions incomprehensible to lay people that may ultimately undermine respect for law, not merely among the youth but among adults as well. I don't believe it wise for the courts to create fine distinctions of this type. A clearer, more general rule, one more easily implementable and which has a more easily perceivable rationale, is needed here. I believe this case leaves the law in an unsustainable state and a future case will be needed to clarify what kinds of school discipline is permitted and what not in a way that prevents endless litigation and further hair-splitting and fine distinction-making
6.26.2007 5:02am
Public_Defender (mail):
Could it be that the "conservative" "non-activist" Alito just wants to ban speech that conservatives disagree with (pro-drug) but not speech conservatives agree with (anti-gay)?

This opinion just shows that conservatives can make up law to support their substantive positions just like they have accused liberal judges of doing.
6.26.2007 5:23am
Pendulum (mail):
Given the decision, it's a shame that counsel didn't try claiming that BONG HiTS 4 JESUS wasn't political speech in support of a religious use exemption for Christians who believe

I personally liked Randy R's comment in a previous thread musing over whether "Gin &Tonics 4 Jesus" would be legal. Randy also offered:
"People smoke pot"
"Torture all the Gitmos!"
"Torture all students who question authority!"
"Adhere to the rule of law!"

I would have ruled that, while a school may ban disruptive behavior during school time, it may not ban non-disruptive speech, especially on non-school time, uspecially when it discriminates based on viewpoint content. But good sense like that is why I'll never be appointed.
6.26.2007 6:14am
Pendulum (mail):
Naturally that should be "Christians who believe in bong hits for Jesus", or something of the like.

I also enjoyed James Ellis' suggestion of "Overturn: BONG HiTS 4 JESUS"
6.26.2007 6:18am
M. Stack (mail):
This issue of "physical safety" is not the reason for the majority opinion; it is only a premise in the conclusion. The opinion was based on the rationale that the promotion of "illegal" acts, i.e. drug use, can be restricted simply because they are illegal.

Prof. Volokh brings up scenarios regarding "Homosexual" slurs and minors having "unprotected sex," but these couldn't be restricted because those acts are not illegal; that's the difference.

If someone wore a shirt that said "Let's get drunk," the school could make the student remove the shirt because it's promoting an illegal act; underage drinking. But if the student wore a shirt that said "Let's have sex," the school could not justify having the student remove the shirt because having sex is not illegal.

It's really not that complicated. Speech that promotes illegal actions can be restricted by public school officials.
6.26.2007 6:26am
Grant Gould (mail):
Like Prof. Volokh, I was frankly puzzled by both the majority and Alito/Kennedy opinions. Neither really even seems to try to get at the question of why drug use is a special case, but merely takes it for granted that it is. Indeed, this seems to be one of Breyer's complaints -- that the exception seems completely ungrounded and nonsensical.

I wonder if it isn't simply that the Court believes that drugs are in some way a totally unique and bizarre phenomenon, so insidious in their awfulness that they burn a drugs-shaped hole straight through the Bill of Rights. Then this case makes sense alongside many other drugs-related cases as part of a more general principle, a mere trivial extension of the notion that there is no Constitution when drugs are mentioned to the First Amendment as well.
6.26.2007 6:30am
Pendulum (mail):
In the case of Morse v. Frederick, the Court finds:

IT'S DRUGS!!!!!!!!!!!!!!!!!

Judgment for Plaintiff.
6.26.2007 6:49am
steve lubet (mail):
In a footnote, Thomas says, "Although the First Amendment did not apply to the States until at
least the ratification of the Fourteenth Amendment . . . ." Obviously, Thomas does not want to concede that the First is incorporated in the Fourteenth (he has said as much before).

Serious question: What about the Fifth Amendment? Do ur-originalists believe that the Takings Clause applies only to the federal government, or is it applicable to the states by virtue of the Fourteenth?
6.26.2007 7:41am
Barbar:
"Taxation is theft."
6.26.2007 7:45am
TruePath (mail) (www):
Great post Eugene, exactly what I was thinking but much better stated.

To the commenters defending or at least minimizing the badness of this opinion:

I think some of you are missing Eugene's point. The decision isn't so horrible because of the conclusion it reaches but because of how it reaches that conclusion. Had the opinion focused on the disruptive nature of the banner at that event (manner of speech) or even repudiated Tinker and broadly restricted student speech rights it wouldn't have been so bad. It is because Alito (and some of the other justices) seemed to hang their hat on the fact that this speech is advocating illegal drugs that it is so problematic.

This decision does not say that students free speech rights are curtailed when they are undermining the school's message. The court would never adopt such a rule as it hamstring student speech opposing the teaching of evolution or condom use. Nor does the decision provide any reason to believe that the school's message on drugs is any more occluded by contrary student expression than their message on any of these other issues. The decision just mandates blatant viewpoint discrimination against the idea that people should use more drugs.

Alito might have limited the effect of this particular ruling to this set of facts but as we all know that reasoning endorsed by the supreme court can be just as powerful as the actual decision (Marbury v. Madison). That is what is so disturbing about this decision. I think student free speech is pretty important as it is (and it differs from private school because one is mandated to attend) but this threatens to stretch beyond student speech. I fear that this opens the door to restrictions on other 'dangerous' ideas based on content.
6.26.2007 9:24am
Gregory D. Morris (mail) (www):
I agree with Dave Hardy... it is clear to me, a reasonable individual, that the poster had absolutely nothing to do with the promotion of drug use.

Regardless of the intent of the poster, I still disagree with the ruling, because I feel that promoting the use, versus the legalization, of marijuana should be equally protected speech.

And since everyone else is posting "what-ifs"... how about alluding to "Bong Hits 4 Jesus" by saying "Bing Hits 4 Jesus".

I guess I wanna see some kid test out this ruling.
6.26.2007 9:39am
Anonymous Skeptic (mail):
Eugene,

The dissent repeatedly suggests that "BONG HiTS 4 JESUS" is not advocating drug use, but instead is mere gibberish. And while the government may have a more compelling interest in preventing the advocacy of illegal drug use on campus (which Stevens seems to concede to some extent), isn't the interest of the student completely absent when he is speaking gibberish (i.e., not contributing to the market of ideas at all)?

In other words, why is gibberish protected speech (perhaps more protected than speech advocating illegal conduct)?
6.26.2007 9:42am
Oren (mail):

The opinion was based on the rationale that the promotion of "illegal" acts, i.e. drug use, can be restricted simply because they are illegal.


When does advocation for making X legal become promotion of X? The majority on the court has a distinction but not a difference, at least not one that seems to make any sense.


Prof. Volokh brings up scenarios regarding "Homosexual" slurs and minors having "unprotected sex," but these couldn't be restricted because those acts are not illegal; that's the difference.

[N]o person...shall be subjected to discrimination, or any form of illegal bias, including harassment. No person shall be excluded from participation in or denied the benefits of any [school] program or activity on the basis of sex, sexual orientation, gender, . . . Title 5, California Code of Regulations, § 4900(a).


The nice Christian boy that wore a "Homosexuality is a sin" shirt is clearly promoting violating that law. At the very least, we can't say that he advocates following the law as written.


If someone wore a shirt that said "Let's get drunk," the school could make the student remove the shirt because it's promoting an illegal act; underage drinking. But if the student wore a shirt that said "Let's have sex," the school could not justify having the student remove the shirt because having sex is not illegal.

Cal Penal Code 261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.



"Let's have sex" is an advocation of an illegal act with respect to at least 80% of the people in a high school liable to read it.


It's really not that complicated. Speech that promotes illegal actions can be restricted by public school officials.


Absolutely. It's really not complicated at all - the word "promotes" is straight-forward and not at all ambiguous.
6.26.2007 10:02am
Oren (mail):

I guess I wanna see some kid test out this ruling.


Let's hope they do it in the 9th. Any other district will use Morse as cover. Then we can see if Alito is serious about the limitation or if he lets the issue stand (by not voting to grant cert).
6.26.2007 10:05am
nickjuneau24 (mail):
I posted this on the other thread, but thought people might get a kick out of it on this thread also. Here is a link to the actual poster:

http://en.wikipedia.org/wiki/Image:Bh4j.jpg

The photograph would have been taken from the school grounds, less than 50 yards from the school's front door.
6.26.2007 10:17am
Anonymo the Anonymous:
I'm curious, did the kid's attorneys ever try to make the point (in a lower court, perhaps) that even if you want to interpret the sign as having intelligible content, the phrase "bong hits" does not, in fact, explicitly refer to illegal activity? A bong is a water pipe most commonly used to smoke marijuana, but there's nothing essential about a bong that makes it unsuitable for smoking other, legal substances. Thus the sale of bongs remains legal and open in most U.S. jurisdictions as long as buyer and seller refrain from expressing any intent to use the bong illegally. The sign wasn't "Smoke Marijuana 4 Jesus".
6.26.2007 10:21am
SenatorX (mail):
Heck of a Job Alito!
6.26.2007 10:25am
Special Guest:

It's really not that complicated. Speech that promotes illegal actions can be restricted by public school officials.


The problem I have with this is that it hamstrings students' form of speech. Advocating doing X and advocating that X be legal are always going to be intrinsically related: you lobby or protest to change a law because you often want to obtain the benefits of the change, or you want other people to obtain those benefits. Why else would you want the law to change? Now, students have to append a sort of disclaimer to their protests, saying that "in general I think X should be legal, but I'm not taking a position on whether I want to do X." That seems like a pretty serious restraint on speech to me.
6.26.2007 10:28am
PersonFromPorlock:
Indonesia's former President Sukarno had a marvelous phrase he used to describe his particular flavor of dictatorship, "guided democracy."

Here, I think, we have "guided free speech." Not necessarily a bad thing; I can't think of many better ways to undermine the nanny state than by subjecting naturally cynical youth to the whims of educrats.
6.26.2007 10:30am
byomtov (mail):
Randal says it all:

Alito sought to reach his preferred policy outcome.

He doesn't like high school kids talking about drugs, so he found a way to let the school stop it.
6.26.2007 10:49am
Cato:
Aren't schools supposed to be acting in loco parentis? When acting in such capacity, why do the students have any rights at all, except maybe rights they would have as against their parents? Accordingly, schools should have the right to prohibit any activity, including speech, that a reasonable parent would have.
6.26.2007 10:54am
dweeb:
Advocating doing X and advocating that X be legal are always going to be intrinsically related

Seems to me it allows one to advocate legalization, and indulging SUBSEQUENT to said legalization, but not civil disobedience PRIOR to said legalization. As many rule of law advocates have said, if the law is wrong, work to change it, but obey it in the meantime.
6.26.2007 11:20am
Justin (mail):
This still seems more like "the drugs exception constitution." Unfortuante, but hopefully a limited holding in that context.
6.26.2007 11:22am
NYU 3L:
Cato -

Aren't schools supposed to be acting in loco parentis? When acting in such capacity, why do the students have any rights at all, except maybe rights they would have as against their parents?


That's a really dangerous doctrine to promote in a nation with mandatory public education. If public schools are acting in loco parentis, we have a system that actually states that for half of a child's waking hours, the state will assume parental rights by force. Sounds...Cuban, or Soviet.
6.26.2007 11:23am
Justin (mail):
PS - This is why SCOTUS takes so few cases. What do you think the person who wrote the cert rec is thinking now about his decision?
6.26.2007 11:23am
New World Dan (www):
I gotta give props to Justice Thomas: either kids have free speech rights or they don't. His view is that you can't run a school without rock-solid authority and therefore kids have no free speech right. At least he's clear, honest, and direct, which is more than I can say for Roberts, Scalia, Kennedy and Alito.

The dissenters on the other hand, while siding with free speech rights, also pointed out that the school's principal had plenty of reasons to discipline Frederick that had nothing to do with the first amendment.
6.26.2007 11:25am
chris c:
wouldn't it be much simpler to just admit Tinker, like much of the 60s, was a nice idea that's impossible to implement in reality?

I know this could subject kids to various irritations, such as political hectoring by faculty or the admin as in the 9th Cir 'homosexuality is a sin' case. But the better cure for that is to prevent teachers and admins from hectoring kids about political matters in the first place.

and if that fails - and I know it probably would, since some educators seem to have decided that kids are so well versed in the basics that they have time to listen to political tirades - all the propaganda is going to backfire anyway. like much of high school, kids will suffer through it then get on with their lives.
6.26.2007 11:26am
Teague:
A bunch of old men who dislike drugs reached an illogical decision in a case vaguely involving drugs? What a surprise.

Visceral dislike of drugs and anything that seems to support them has been the norm on the court for quite a bit, and as always justices are quite willing to twist and contort their rulings in order to reach the outcome they desire.
6.26.2007 11:26am
Justin (mail):
"In other words, why is gibberish protected speech (perhaps more protected than speech advocating illegal conduct)?"

I actually agree with this point. Just like something can be expressive without actual words (burning a flag), displaying a sign can be an action devoid of expressive conduct.

At first I thought this would be great alternative grounds for the holding. But a subjective test will be almost impossible to police, and can lead to far greater infringement on speech than an objective test. Think of this argument: "They weren't burning a flag out of anti-US expression, but just to piss people off!"
6.26.2007 11:31am
Special Guest:
I don't think that's a line that should have be drawn so sharply, dweeb. What if a student wants to present facts showing that people who currently smoke marijuana are not harmed by it, and on a purely medical basis have no reason to stop? Or that they have an affirmative medical reason to smoke? Surely that's "promoting" illegal drug use. In order to be sure he wouldn't get expelled, that student would have to add the disclaimer "but all smokers should stop until it's legal." That a student speaker has to make such qualifications now seems outrageous to me.
6.26.2007 11:33am
AK (mail):
Thus the sale of bongs remains legal and open in most U.S. jurisdictions as long as buyer and seller refrain from expressing any intent to use the bong illegally.

Sure. And one of the ways that buyers and sellers manifest an intent to use the bong for illegal purposes is by calling it a "bong." If you go into a head shop and ask for a "bong," you'll be asked to leave. It's a "water pipe."

how would one tell whether harsh condemnation of homosexuality could reasonably be seen as endorsing attacks on homosexuals, or at least illegal discrimination based on sexual orientation?

It always amazes me that such smart people could claim to be so confused. Since when is it so hard to determine whether a statement endorses attacks on homosexuals? Seriously, I defy anyone to create a statement that could confuse anyone other than a law professor, appellate judge, or sophist.
6.26.2007 11:43am
Random Lawyer:
What if the banner had said "Overthrow the Government" or "Disrupt the School Board Meeting"? "Drive When You Are 14"?
6.26.2007 11:49am
XON:
I'm very troubled by this decision, and this discussion. If the premise of the holding is that there is no first amendment right in advocacy of illegal behavior, then we have already entirely lost the Constitution, and likely any freedom under which we believed we lived.

- "Any person failing to pay taxes in the amount of 100% of gross income shall be subject to . . ." [18USC section 15386(A)(1), rev.2009]. "The pursuit of liberty is largely a matter of economic freedom." -- 10 years in re-education camp.

- "Disparaging commentary against duly appointed officials or officer of the United States, or any political subdivision thereof shall be subject to not less than. . ." [18USC section 16983(B)(1)(a), rev 2009]
"Throw da bums out." -- 5 years re-education and $1,000,000.00 fine.

et cetera.

I didn't like the decision to begin with; but after the plain meaning of the convoluted logic stopped swirling around, I'm astonished. For now, any person enrolled in a government school, adult or minor, can be sanctioned by the school for SAYING anything that the government decides they don't like.

And refrain from pointing out the 'narrow' holding. Best example, from the posts above: Marbury v. Madison.

Yes, I know this sounds like a rant. But I am ranting. Both threads seem to be politely discussing the rhetorical merits of a decision that has just handed essentially complete power over the 24-hour lives of a large section of our population to school administrators to sanction thought crimes and political activism!

The whole thing has the same feel as that scene in Titanic with the musicians: "Gentlemen, it has been my pleasure to play with you."

No, not comfortable at all. . .
6.26.2007 11:56am
Horatio (mail):
All government officials in any context should be liable for infringing on any rights of anyone. The penalty, at minimum, should be the loss of job and benefits. Period. End of sentence.

The notion that somehow “government schools” and those individuals that run them should be immune from the 1st (or any) Amendment is anathema to individual liberties. The very notion that our Republic is threatened by chaos in the schools is so irrational, and one more reason why they should be abolished. Don’t even get me started on compulsory attendance.

“Stare decisis” - Latin for “the hell with them and the horse they rode in on, regardless of how illogical, irrational, immoral or blatantly against the intents of the Founders our prior decision may have been.”
6.26.2007 11:56am
ATRGeek:
First they came for sex (Fraser), and then they came for drugs (Morse). I can only assume rock n' roll is next.

By the way, how about this message: "Exercise civil disobedience: smoke pot!" Political commentary or advocating illegal behavior? And then how about: "Exercise civil disobedience: sit at the front of the bus!" Political or criminal?

I also love Alito's idea of limiting the holding in this case to advocating those criminal activities which are deemed harmful by the state. Because, you know, the state admits that it regularly makes completely harmless activities into crimes.

In short, I agree Alito's reasoning is basically this: Drugs are bad, m'kay? So people who talk about taking drugs are bad, m'kay? So Tinker does not apply to drugs, m'kay?
6.26.2007 12:13pm
Oren (mail):
Horatio,

While I am appalled at the decision, I would have voted to grant the principal et al. qualified immunity based on the fact that the law at the time was unsettled and that well-meaning government employees should not be liable for being test-cases.

It's vindication enough to have the Supreme Court rule in your favor and (effectively) enjoin school admins around the country from doing the same.
6.26.2007 12:17pm
Elliot123 (mail):
So, what do we do with a Rastifarian student who has a sign saying, "Smoke dope and see God?" Is religious speech protected?
6.26.2007 12:21pm
Robert West (mail) (www):
<i>If the premise of the holding is that there is no first amendment right in advocacy of illegal behavior,</i>

It isn't. The premise of the holding is that (a) students in school have a weaker first amendment right while they are at school than do adults; (b) schools may prohibit student speech which celebrate or promote drug use.

The first is relatively uncontroversial; it's been held by numerous courts repeatedly over decades. The second is much more contentious. The plurality seems to think that schools can do this because they can prohibit any speech which "interferes with the educational mission"; Alito and Kennedy seem to think that schools can do this because drugs are bad.

But on no account does this decision apply to adults, or even to students who can't plausibly be held to be in school at the time of their speech.
6.26.2007 12:22pm
Oren (mail):

So, what do we do with a Rastifarian student who has a sign saying, "Smoke dope and see God?" Is religious speech protected?


See my previous post regarding Christian anti-homosexuality violating state anti discrimination law.
6.26.2007 12:33pm
whit:
"Could it be that the "conservative" "non-activist" Alito just wants to ban speech that conservatives disagree with (pro-drug) but not speech conservatives agree with (anti-gay)? "

there is at least (if not more) history of conservatives supporting decrim/legalization of mj as there is from those on the left. national review came out for it DECADES ago, for instance.
6.26.2007 12:33pm
Randy R. (mail):
Which gets me back to a point I made earlier. What if a student writes a thougtful essay in the school paper about legalizing marijuana? Or legalizing it for medicinal purposes? Under this ruling, it could be censored. However, if she writes an articles about lowering the drinking age, it can't be.

Is my reading correct? If so, it's pretty stupid.

My Con Law prof, way back when, argued that the Supreme Court basically reflects middle class values in America more than anything else it does. This case proves it.
6.26.2007 12:38pm
Dave Hardy (mail) (www):
"Adhere to the rule of law!"

Now, in a school that's WAY over the line!

I wonder when someone is going to write an article on the "marijuana exception" to the Constitution. The one that causes certain of the "conservative wing" to vote for federal power, etc.
6.26.2007 12:40pm
whit:
"I don't think that's a line that should have be drawn so sharply, dweeb. What if a student wants to present facts showing that people who currently smoke marijuana are not harmed by it, and on a purely medical basis have no reason to stop? Or that they have an affirmative medical reason to smoke? Surely that's "promoting" illegal drug use. In order to be sure he wouldn't get expelled, that student would have to add the disclaimer "but all smokers should stop until it's legal." That a student speaker has to make such qualifications now seems outrageous to me."

look. a student can still make ANY FRIGGING STATEMENT he wants about legalization/decriminalization of drugs, including letters to the editor, holding a banner, etc. as long as it is not at a school function or at school, correct?

if so, i'm fine with that.

as for 'advocating illegal activity'. you can't have free speech without being able to advocate illegal activity.
6.26.2007 12:42pm
whit:
" If the premise of the holding is that there is no first amendment right in advocacy of illegal behavior"

no, it's not. it references students at school events, correct?
6.26.2007 12:44pm
XON:
Whit, and Robert, You guys are killing me. The objectionable part of this is not the time, place, manner. It's the proscription of speaking of things the government has decided you can't speak of by making them illegal. (Which starts at statute, but then gets down to CFR, but then gets down to zoning regulations, which then gets down to school 'policies', which eventually ends at neighbors informing on neighbors and children turning-in parents.)

I should be snide about your "It 'only appplies to children in school". 'It' only applied to Jews, Gypsies, the insane, and finally, the 'undesireable'.

That's what bothers me about these threads. Normally, I consider this blog to be one of THE brightest lights of intelligent, thoughtful, mostly libertarian legal thought. This decision brings the statists out of the woodwork, and has apparently sent the otherwise insightful, even powerful thinkers hemm-ing and haww-ing in retreat, apologetically, into the corner.
6.26.2007 1:03pm
Kevin!:
I thought that the point of Morse was that the relevant rights in question are the rights of OTHER students to be let alone &to have their health and safety protected.

In this sense, drug advocacy is clearly distinct from, say, anti-gay commentary. Finding that anti-gay speech violates the rights of other students is going to be a much harder boat to row. Maybe, maybe you can say that it's so virulent that a reasonable principal would fear for the safety of gay students. Possibly you can get by with a "climate of fear," argument -- but Tinker appears to protect that.

But drugs? Drugs ARE pretty bad for high school students. And we DO, rightly or wrongly, consider students to be unusually receptive to a pro-drug atmosphere at a school. "Just say no," remember? The Supreme Court attached plenty of findings that drugs create a danger to the health and safety interests of other students -- and these are substantial!

So, if someone yells "Overthrow the Government!" I think... what rights of other students does that violate? Not health and safety. Not right to be let alone. Not the right to be educated. It doesn't violate anything! And that's why it isn't affected by Morse.
6.26.2007 1:09pm
ATRGeek:
As an aside, one might think it should be a goal of our public schools to teach our students about our basic civic principles. You know: things like that although the state might criminalize certain activities, the state cannot then also criminalize speech which celebrates those activites, because free speech is both a fundamental natural right and also crucial to the democratic process (and free speech about criminal matters is particularly important for the latter reason).

But I guess that sort of thinking can't stand up to "Drugs are bad, m'kay?"
6.26.2007 1:20pm
Cato:
NYU 3L,

That is why I support school vouchers. They permit parents to make substantive decisions about not only the kind of education their child will get, but also what kind of regime he or she will live under. Mandatory public schools provide for less diverse teaching methods and choices.

BTW, NYU sucks. I know, an alumnus:)
6.26.2007 1:25pm
r78:
EV - your assumption seems to be that the justices are concerned with creating a logical consistent legal framework.

The opinion is much more easily understood if you start with the assumption that the plurality here was primarily concerned with how best to shut up a viewpoint with which they disagreed.
6.26.2007 1:25pm
Jesu Advocate:
Hitting one Jesu with a bong is cruel, but striking all four Jesus? A poster that advocates anti-Jesu violence is definitely ban-worthy.
6.26.2007 1:26pm
whit:
"I should be snide about your "It 'only appplies to children in school". 'It' only applied to Jews, Gypsies, the insane, and finally, the 'undesireable'."

what utter rubbish. schools are not "in public" and kids are not adults (see: in loco parentis).

if a parent has a right to discipline a kid for certain speech (which he does), then so does the school. that's because kids are NOT adults. it's really not that hard a concept. try to keep up.

if you work for an employer (govt. or private) do you have a "right" to wear a "the holocaust never happened" t-shirt?

of course not.

however, you do have the right in this country (unlike france, canada, etc.) to wear it IN PUBLIC.

kid or adult.

we recognize greater freedom of speech than any nation on earth

the fact that schools have an authority to limit speech at school events for students, does not threaten that.
6.26.2007 1:28pm
Special Guest:

But drugs? Drugs ARE pretty bad for high school students. And we DO, rightly or wrongly, consider students to be unusually receptive to a pro-drug atmosphere at a school. "Just say no," remember? The Supreme Court attached plenty of findings that drugs create a danger to the health and safety interests of other students -- and these are substantial!


That's what bothers me most about this case -- leaving aside the legality/illegality question, why do school districts get to decide "drugs are bad"? What is the standard of review for that decision? Rational basis? Is this like Carhart, where even clear falsehoods in "findings" must be deferred to?

There are many thoughtful reasons to be against the "just say no" approach to teenage drug and alchohol use -- including the view that promoting a non-hysterical, realistic approach actually HELPS kids learn to be responsible users themselves. Just go to Spain where kids learn early on that wine is for moderate enjoyment, not getting trashed...
6.26.2007 1:30pm
whit:
"why do school districts get to decide "drugs are bad"?

fwiw, i am for the legalization of mj (or AT LEAST decriminalization of same) and against the drug war in general.

with that in mind. the reason they decide this is that school districts, as govt. agencies, should generally SUPPORT the laws that we have.

that's a relatively neutral posture vs. a particular school baord picking and choosing based on their personal beliefs as to what laws are good and bad.

i personally think DARE is pretty ridiculous, and i hate the anti-drug propaganda (i also hate pro-drug propaganda, and there is plenty on both sides that is anti-scientific/nonfactual) but it would truly be absurd to have to send our kids to school with the understanding that the local school would teach our children that certain laws were good, and certain laws were bad, based on their personal beliefs.

of course, many schools do go against the law of the land when it is their pet liberal issue - see the whole "no recruiters on campus" thing.

as a police officer, i generally (i do have some discretion in non-enforcement of course) also have to do the same. i disagree with many many laws, but i still enforce the ones i don't agree with.

this is yet another great argument for private schools and vouchers. choose a school that goes along better with your ideology.
6.26.2007 1:39pm
XON:
Whit, if he was 'at school', then so are you: public road, off school grounds, hell, not even, technically attending school that day.

Perhaps your 'always on duty' professional mindset complicates this. First, student is not a professional identity as is Peace Officer. Second, even if it were, you would be justifiably outraged if you were suspended for attending the 'wrong' church on your day off, because, hey, you're always on duty.

The fundamental problem with the approach is that you and others who are 'ok' with this decision proceed from and idea that rights are granted. (Don't bother lecturing. I wore a badge, as do other famliy members. I have yet to meet a serving LEO who doesn't believe and function that way.) Since you are part of the government that grants those laws, you're comfortable with the decision.

Others, Jefferson included, believed that rights are defended and inalienable (in loco parentis? indeed. . .) Since I see more and more people sliding into your approach, like Alito, the Court, Prosecutors writ large, etc. . . I feel more and more inclined to defend. I hope it remains at the level of advocacy and action. But I'm sure if those lanes become closed, you will be happy to show me where rights originate from.
6.26.2007 1:50pm
TZiese:
For all of you who believe that students have no free speech rights on campus, that schools act in loco parentis, and can ban whatever they want:

Could a school ban all speech that favors the Republican party, and only allow praise of Democrats?
6.26.2007 1:51pm
ATRGeek:
Kevin! and I cross-posted, which I think is quite interesting.

I would again suggest that our basic civic principles include the idea that if the state perceives the use of certain drugs by its citizens as a problem, it can take measures to directly address that problem, perhaps up to and including criminalizing the use of those drugs. But what it cannot do is attempt to indirectly address this problem by criminalizing speech about use of those drugs, even speech which "celebrates" such activities.

So exactly why should we erase this distinction (between the state directly addressing the alleged problem through sanctions directed at the activity in question and the state indirectly addressing the alleged problem through sanctions directed at speech about the activity) when it comes to school children as opposed to other citizens? Why isn't it just as true for our children that the best remedy to speech by our children that we don't like is more speech, and not an attempt by the state to eradicate the speech by our children that we don't like? And why does all this magically change once the child is not in a public school?

That is part of what is so absurd about Alito's argument. To the extent children using certain drugs is a problem, it certainly isn't a problem unique to the school environment. That is why his argument basically eradicates the sensible framework established in Tinker, which carved out a limited exception for speech that actually disrupted the school, as opposed to speech that celebrates an illegal activity which the state deems harmful to children.
6.26.2007 1:51pm
Kevin!:
Drugs are illegal. And while it's tempting to say that advocating illegal conduct is the standard, that would be ridiculous in practice. ("Litter! Do it now!") Clearly there is a difference between "Disobey the Draft" and "Kill some f-ing cops"

The reason for a distinction must be obvious -- the effect on OTHER STUDENTS in a learning environment. Some advocacy will have little effect on them (jaywalk!)... some will (drugs!) Some advocacy of illegal conduct is politically-minded Tinker-speech that we consider civic-minded (no draft!)... and some isn't (murder!).

I don't see any way out of the morass except for a balancing test between the rights of the collective students and the rights of the student, with deference given to the determination of the on-the-scene principal. Fraser really wants to do this, but doesn't have the balls to say "Yes, we're doing another f-ing balancing test." Morse doesn't even have the cojones to do that. So it APPLIES the balancing test while not SAYING that it's doing it!

An honest judicial test would tote up the valid In Loco Parentis, Educational, &Health and Safety concerns of the State and place it against the civic/free speech rights of the student. But that's not going to happen.
6.26.2007 1:51pm
whit:
"Whit, if he was 'at school', then so are you: public road, off school grounds, hell, not even, technically attending school that day."

rubbish.

like i said, GIVEN that he was at a school event, is the issue. if the event wasn't a school event, i think the school should have NO jurisdiction whatsoever.

how hard is that to understand. the issue we were discussing (and i was addressing) is that kids do not and should have not have free speech rights AT SCHOOL EVENTS if they are students.

just as a parent has the right to punish a kid, so does a school

in public (not at school) kids should have the exact same free speech as adults.

promotion of illegal activity, etc. should be protected speech
6.26.2007 1:55pm
whit:
"Perhaps your 'always on duty' professional mindset complicates this. First, student is not a professional identity as is Peace Officer. "

not in evidence.

i am not always on duty, and i have every right to protest the drug laws or any other law WHEN OFF DUTY. i personally think marijuana is dumb, but i don't think it should be illegal. could i wear a "legalize it" t-shirt when off duty? sure. heck, i know some drug unit cops who wear them ON DUTY! :)

just as a student has every right to say whatever an adult could say when NOT at a school event/on campus

why is that difficult to understand?

i personally know two officers from my dept. who participated in the WTO protests (whereas i was on the riot squad protecting delegates and protestors).

they had every right to do so.

but could a principle restrict a student from protesting the WTO when on campus, or at a school event? of course.
6.26.2007 1:58pm
AK (mail):
A lot of people are hung up on the idea that Alito and Kennedy watched Reefer Madness and think that marijuana is the source of all the world's ills. That opinion had nothing to do with drugs per se. It has nothing to do with the dangerousness of marijuana. It only has to do with marijuana's illegal status. The opinion would be equally applicable to a banner that read "High-Capacity Toilet Flushes 4 Jesus."

So, what do we do with a Rastifarian student who has a sign saying, "Smoke dope and see God?" Is religious speech protected?

We'd do what we do in cases involving prohibition of religious conduct. We ask if the law was one of general application, and whether it was intended to restrict religious practices. Smoking dope is illegal regardless of your religion, so advocating smoking dope as part of a religious ceremony could be banned by a school.

That's what bothers me most about this case -- leaving aside the legality/illegality question, why do school districts get to decide "drugs are bad"?

Good question. Why do they get to decide that tobacco is bad? Why do public schools get to teach that racism is bad? Why do they get to teach that a particular view of history is better than another? Government schools place value judgments on the content of constitutionally-protected speech all the time, and normally we don't care.
6.26.2007 2:01pm
XON:
You're making my point for me. The passing of the Olympic Torch is a school event?! "Rubbish", dismissing the assertion that the principal didn't have any authority over his behaviour in a public space and forum is exactly the same as Alito's tortured, but, I think everyone is pretty much in agreement, "Drugs are bad, mmmkay."

You are as happy theoretically granting rights to theoreticals, up until you don't feel like it and call "Rubbish", as Alito is. The point here is: what happens, practically, when someone disagrees with your arbitrary assertion of rights-grantin powers?
6.26.2007 2:02pm
Fub:
PersonFromPorlock wrote at 6.26.2007 9:30am:
Indonesia's former President Sukarno had a marvelous phrase he used to describe his particular flavor of dictatorship, "guided democracy."

Here, I think, we have "guided free speech." Not necessarily a bad thing; I can't think of many better ways to undermine the nanny state than by subjecting naturally cynical youth to the whims of educrats.
Such optimism doesn't take into account Stockholm Syndrome.
6.26.2007 2:03pm
ATRGeek:
whit,

Like Kevin! and others, you seem to be eliminating the crucial distinction between enforcing the law and criminalizing speech about the illegal activity. So, for example, I agree that it is proper for a police officer to enforce a law against using certain drugs even if that police officer personally disagrees with that law. But the police officer should not be enforcing a law which makes it a crime to speak in a way which celebrates that illegal activity, because there should be no such law at all.

Similarly, you are blurring the distinction between what the school says and what the students say. The school generally should not be in the business of telling students which laws they should or should not obey (although that gets tricky when the issue of civil disobedience comes up). But what we are talking about here is the school sanctioning a student for speaking in a way that alleged contradicts the school's official policy, which is an entirely different issue.

Kevin!,

Again, why is any of that reasoning limited to the school environment? Child A and Child B are just hanging out. Child A tells Child B he tried illegal drug X and it was pretty cool. On your theory that drugs are bad so children speaking about drugs is bad and so the state should stop children from speaking about drugs to each other, why shouldn't the state sanction Child A for celebrating illegal drugs in the presence of Child B even though neither Child A nor Child B is in school?

Again, none of this really has anything to do with school.
6.26.2007 2:03pm
whit:
do you not understand the word "given"

let me repeat

GIVEN that the student WAS a student and WAS at a school event, the principle had the right to restrict the banner.

if he wasn't (a student) or wasn't (at a school event) the principle should not have that right.

and like i said, i don't think drugs are bad. i think many illegal drugs actually have some pretty good benefits, and many should not even be illegal.

that's totally irrelevant to the issue.
6.26.2007 2:05pm
XON:
sorry, "rights-granting". I normally wouldn't pick the nit, but that particular error made the paragraph sound ad-hominem. Absolutely not the tone I intend.
6.26.2007 2:06pm
ATRGeek:
whit,

We cross-posted. But as with Kevin!, I don't see why you are limiting your reasoning to the school environment.

And generally, we do NOT grant public school officials the same authority as parents. For example, parents can teach their children that Religion X is right and Religion Y is wrong. Or, as another poster pointed out, parents could teach their children that Political Party X is good and Political Party Y is not good. But public school officials do not have the authority, nor do we want them to.
6.26.2007 2:10pm
Special Guest:

Good question. Why do they get to decide that tobacco is bad? Why do public schools get to teach that racism is bad? Why do they get to teach that a particular view of history is better than another? Government schools place value judgments on the content of constitutionally-protected speech all the time, and normally we don't care.


There's a difference here, though, between student speech and what school's teach -- the schools now get to punish a student or place a prior restraint on speech based on some notion of "badness." Really, I can't understand this case any other way than as creating a special category for drug speech, the same way a category has been created for pornography and obscentities.
6.26.2007 2:11pm
Kevin!:
The reasoning makes the most sense in a non-public place where (a) the school has voluntarily assumed a special custodial responsibility, (b) that responsibility is very similar to the fairly extreme authority that parents exercise over their kids, and (c) the non-public place is used for a special, and very valid, government activity (education). Not to mention the unique captive audience problem of a school audience.

After all, there are already LOTS of things schools can punish kids for that only apply in a school setting. Skipping out. Not doing homework. So on. It's not a huge leap from there to speech restrictions.
6.26.2007 2:12pm
whit:
"Like Kevin! and others, you seem to be eliminating the crucial distinction between enforcing the law and criminalizing speech about the illegal activity. So, for example, I agree that it is proper for a police officer to enforce a law against using certain drugs even if that police officer personally disagrees with that law. But the police officer should not be enforcing a law which makes it a crime to speak in a way which celebrates that illegal activity, because there should be no such law at all. "

there is no law (i am aware of) criminalizing advocacy of illegal activity (except the liberals in WA state tried it in regards to a newspaper article giving links to online poker sites, but i digress).

the issue is can principals SANCTION/STOP kids from using certain speech (to include advocacy of criminal behavior) AT SCHOOL EVENTS. if they are students, yes?

it doesn't criminalize the behavior. it merely says that principals can enforce school rules and/or sanction kids (civilly not criminally) similar to how they could for dress code violations, showing up late, etc. none of which apply to non-students or adults or students outside of school.

i went to a quaker school. in that case, i could be disciplined for wearing any sort of apparel that mentioned, promoted, or represented the military.

when a kid is off campus, and not at a school event (like when the last bell rings and he walks off campus and stands on the sidewalk) i would FULLY support his right to hold a banner that says "bong hits for jesus" "illegal immigrants suck" "legalize gay marriage" "criminalize sodomy" or whatever.
6.26.2007 2:13pm
XON:
OK, once more around. Whit, you are on duty 24-7; with the attendant uniform, response time, and public-affairs requirements There. That's what the decision did to anyone enrolled in a K-12 public educational institution.

As to the given, it's irrelevant. Given you agree with me, you are correct. (He wasn't 'at school' by any reasonable stretch of the imagination, nor was he engaging in school activity.)
6.26.2007 2:13pm
Kevin!:
How does Morse differ from the established educational policy of thousands upon thousands of schools? Read the disciplinary handbook of any number of High Schools. Your high school. Drug advocacy -- and very specifically drug advocacy -- is uniformly prohibited.

Perhaps it is stupid to make drugs 'special.' But drugs already ARE special, and Morse just confirms the policies of many, many school districts. The silver lining of "Drug Exceptionalism" in the Constitution is that it means student speech won't be generally along the lines of "promoting illegal conduct".
6.26.2007 2:17pm
whit:
"OK, once more around. Whit, you are on duty 24-7; with the attendant uniform, response time, and public-affairs requirements There. That's what the decision did to anyone enrolled in a K-12 public educational institution. "

um, actually not. this is a common myth surrounding law enforcement (at least in my jurisdiction).

i may ENTER "on duty" mode at any time when off duty if i happen to witness a crime in progress, etc. but for the most part i am not.

for example, i can drink alcohol, have sex, go to political protests, etc. when off duty.

similarly, a student when NOT A SCHOOL EVENT can do all sorts of stuff that is prohibited while on campus like drink alcohol (in most jurisdictions perfectly legal if supplied by the parents), have sex (age of consent issues notwithstanding), and engage in political protest.

thus, the analogy is apt.

the decision did NOT do what you claim it did.

as long as the kid is NOT at a school event, or not a student for that matter - it is, and should be TOTALLY LEGAL to advocate any sort of illegal activity.
6.26.2007 2:18pm
ATRGeek:
Kevin!,

Of COURSE that is a huge leap. The things you mentioned (attendance, homework, and so on) are specific to the school setting because they are about conducting a school, a place for education.

But the argument you are making about drug-related speech by children has nothing in particular to do with the child speaking in a school. It is a general argument about children, drugs, and the claimed need to protect children from not just illegal drugs themselves but also speech about illegal drugs. That makes the huge leap from educational concerns to general societal concerns, and that is why it makes no sense to limit your argument to just speech in public schools.

And again, public school officials do NOT exercise all the same authority over their students as parents could exercise, nor would we want them to.
6.26.2007 2:18pm
r78:

not in evidence.

Oooh look, somebody is trying to talk like a lawyer.
6.26.2007 2:19pm
ATRGeek:
whit,

You need to do more than articulate an in-school/out-of-school distinction. You need to explain and justify it.

Specifically, why does the state not have a legitimate interest in sanctioning (criminally or civilly) child speech about illegal drug use when the child is outside of a public school? Why does the state have a legitimate interest in sanctioning such speech when the child is inside a public school?

And one more time, it is not enough for you to note that parents have such authority, or even that private school officials have such authority, because we do not grant to public school officials all the authority that parents or private school officials might have.
6.26.2007 2:24pm
whit:
"And again, public school officials do NOT exercise all the same authority over their students as parents could exercise, nor would we want them to."

which is of course true. a parent can tell a kid to brush his teeth, wash behind his ears, can spank the kid, can force the kid to listen to a religious lecture, etc.

i think reasonable people understand that "in loco parentis" does not mean as a practical matter "having the exact same rights and responsibilities as a parent".

but of course, they can discipline a student for non-criminal behavior, limit speech, enforce a dress code, etc.
6.26.2007 2:24pm
XON:
r78, not helpful, in the least.



OK, I agree that you support non-school freedoms. I think the decision extended the ability of the principal, in this case, way beyond. . . well, incrementally beyond, the boundaries of 'don't run in the hall', and 'no making fun of teachers'. That's the source of my discomfort with this entire line of reasoning.

You're saying everyone should be punished for breaking the law. I'm saying this decision pushed 'breaking the law' way too far into places where it shouldn't be.
6.26.2007 2:25pm
Kevin!:
But aren't drugs an educational concern as well as a societal concern? Yes, they aren't SPECIFIC to schools, but certainly they can impede educational progress as well as any other disruption.

See Vernonia School District for the Supreme Court's answer. We can force students to PEE IN A CUP if they might (or might not) be doing drugs, the educational interest is so strong.
6.26.2007 2:27pm
ATRGeek:
whit,

By the way, all the same is true when the state is an employer. The state does not have the power to regulate its employees' speech as it sees fit (see Pickering and the line of cases which followed). Rather, the state needs to show how the employee speech regulation in question was necessary for the sake of the state fulfilling its otherwise legitimate goals.

So, here the parallel would indeed be something like the Tinker rule: the school would have to show why regulating this speech was necessary for the sake of the school fulfilling its educational goals. But this decision relieves the school of that burden, and instead allows the school to regulate the speech on the grounds that drugs are bad for children, m'kay?
6.26.2007 2:29pm
whit:
"Specifically, why does the state not have a legitimate interest in sanctioning (criminally or civilly) child speech about illegal drug use when the child is outside of a public school? Why does the state have a legitimate interest in sanctioning such speech when the child is inside a public school? "

that implies that i think the state can sanction child speech about illegal drug use CRIMINALLY in school. i don't believe that for a second.

other than that, it's really not complicated.

as for outside the school. imo, that's a jurisdictional issue. kids are REQUIRED to go to school (generally) and schools are REQUIRED to educate students. given those requirements, it's logical that schools have authority to set up rules for the school (and school events). they have jurisdiction because of their responsibilities/roles, etc.

once a kid leaves school and is not at a school event, the principle has no more jurisdiction over him than any other non-parent adult. cause that's what he is.

it's similar to a workplace. an employer cannot enforce the workplace dress code or sexual harassment code when an employee is not AT WORK.

and of course we do not grant school officials the same extent of authority that parents have. but we grant them pretty large authority (or in the case of cartman "authoritah") to include dress code, speech code (sex harassment, etc.), time/place stuff (be in class, stay on campus during school day), etc.

clearly a school has the right to discipline a kid who calls his teacher a "stupid jerk".

i would argue that a kid has every right to call a teacher a 'stupid jerk' when in public. although i probably wouldn't advise it. he might see some grade deflation.
6.26.2007 2:30pm
whit:
"The state does not have the power to regulate its employees' speech as it sees fit (see Pickering and the line of cases which followed). Rather, the state needs to show how the employee speech regulation in question was necessary for the sake of the state fulfilling its otherwise legitimate goals. "

correct. there was an interesting cop case on this point. cop wore a t-shirt (pro-death penalty) to a meeting that depicted a man being hung by a noose, with a pro-death penalty slogan. a (black) cop protested saying he found the shirt offensive. cop was told to not wear the shirt (and may have been reprimanded. i don't recall). case was appealed. cop won. court said that since the dept. didn't regulate SPEECH t-shirts, it could not discipline or restrict THIS speech t-shirt. the obvious rememdy was for the dept. to ban ALL message t-shirts.

"So, here the parallel would indeed be something like the Tinker rule: the school would have to show why regulating this speech was necessary for the sake of the school fulfilling its educational goals. But this decision relieves the school of that burden, and instead allows the school to regulate the speech on the grounds that drugs are bad for children, m'kay?"

and my point is that employers are NOT acting in loco parentis. schools are. so, they necessarily should have broader authority over students than an employer has over employees.
6.26.2007 2:37pm
ATRGeek:
whit,

Once again we cross-posted. Anyway, you admit public school officials do not have the same authority as parents, but then claim: "but of course, they can discipline a student for non-criminal behavior, limit speech, enforce a dress code, etc."

There is no "of course" about that. Whether or not they can discipline a student for their behavior depends entirely on the behavior in question. The same goes for whether they can limit the student's speech (even after this decision)--it depends on the speech in question. So, they do not generally have such powers, but only a very limited amount of such power.

So, in light of the fact that these powers are limited, the burden is now on you to show why this speech should follow within the limits of their authority.

Kevin!,

You ask, "But aren't drugs an educational concern as well as a societal concern? Yes, they aren't SPECIFIC to schools, but certainly they can impede educational progress as well as any other disruption."

You are back to erasing the distinction between the actual activity in question and speech about the activity. No one is questiong the right of the state to prohibit students in the public school from actually taking illegal drugs (and perhaps from taking measures to enforce such a rule, such as in Verona). But then you extend that notion from prohibiting actually taking drugs to prohibiting speech about illegal drugs, and unless you can show that the speech itself was disruptive, then you are no longer talking about the same standard.
6.26.2007 2:37pm
whit:
atr, i think we both agree that schools do not have the same extent of powers/authoritah! that a parent has.

spanking, religious indoctrination etc. are allowed by parents, but not by public school teachers, for instance.

however, my point is that school officials (at a high school) ARE acting in loco parentis and thus have broader authority than (say) an employer does.

i would argue that a COLLEGE administrator over a college student at a public campus has FAR FAR FAR less authority over a student (on or off campus) than a high school admin. the difference? one is in loco parentis. one isn't.

you are absolutely correct that the in loco parentis authority of a school does not extend as far as an actual parent.

yes.

but it extends much farther than an employers authority over his employees.

one example. i would think an employer generally could not require an employee to remain "on campus" during his lunch break. a school can certainly require a kid to remain on campus until school lets out.
6.26.2007 2:43pm
ATRGeek:
whit,

As an aside, for First Amendment purposes it doesn't much matter whether the sanction is criminal or civil.

Anyway, once again you are back to arguing that somehow schools have all the same authority as parents. I thought we agreed that is not true.

As for state employees, that was actually your analogy but now you seem to be dismissing it. I gather that is because you now recall that state employers can regulate their employee's speech, but only within the limits of what is necessary to fulfill their legitimate purposes as employers. As applied to schools, that would mean that state school officials could regulate their student's speech, but only within the limits of what was necessary to fulfill their legitimate purposes as educators.

But rather than explaining how regulating this speech was necessary to fulfill their legitimate purposes as educators, you just keep saying "in loco parentis". Again, that is not enough: you have to explain why school officials should have these particular powers, since they do not generally have all the powers of parents.
6.26.2007 2:44pm
Kevin!:
I've always been talking about speech about the activity. The Supreme Court, and schools in general, have consistently said that such speech actually IS disruptive and inappropriate in a way injurious to others. How? Well, because it encourages kids to use drugs, it's beyond the boundaries of "civility," (Fraser) it offends anti-drug students who depend on the school's promise to provide them with a drug-free school, and the end-result of a drug-permissive atmosphere is injurious to the school's educational mission.

What makes it different from Tinker-style disruption is that drug-based disruption is pervasive, slow to develop, and hard to monitor. Therefore, protecting student health and safety requires banning it from the outset. This has been settled since Vernonia School District.
6.26.2007 2:46pm
ATRGeek:
whit,

We cross-posted again, but my point stands. Once you agree that state school officials have more limited powers than parents, you have to explain why this particular exercise of power fell within those limits. And it isn't enough to distinguish state employers, because just because state school officials may have more (although I would actually say "different") powers than state employers, that alone still does not prove that this particular exercise of power fell within the school official's limited regulatory authority.
6.26.2007 2:48pm
whit:
"Anyway, once again you are back to arguing that somehow schools have all the same authority as parents."

no, i'm not. please read what i said above.


we both agree that schools (high schools) do not have ALL the authority of parents. clearly, they ARE in loco parentis, and they have MORE power than an average employer... see my above example.

nobody argues that an employer is in loco parentis. it is accepted that high school admin ARE.

you seem to want to setup some sort of false binary. either schools have ALL the authority of parents (clearly NOT the case), or they are merely just like an employer and not in loco parentis.

parents can (and routinely do) sue schools for NOT acting properly in their protective role that would not even be an ISSUE for an employer.

schools have a whole extra layer of protective duty towards their students than an employer does towards his employees. with that added responsibility comes added authority - like restricting kids from leaving campus during the school day (even when on break).

i am not saying that restricting this speech "fulfills their legitimate purpose as educators". heck, i'd argue a principal isn't even primarily an EDUCATOR. he is an administrator.

i am saying that schools have MORE purpose than JUST as educators. a COLLEGE has a purpose just as an educator (which is why i would argue they have far far far less authority than does a hgih school admin), a HIGH SCHOOL has both an educational purpose AND a protective/in loco parentis purpose.

you cannot on the one hand, require a duty (in loco parentis) of a school, and not give more authority to them in light of that ROLE. which is not JUST an education role that they have.

do you see the difference?

again, compare and contrast COLLEGE with HIGH SCHOOL.

college - much more restricted role. much more restricted authority. high school - much more expansive role/duty. more more restrictive authority.
6.26.2007 2:52pm
whit:
and ATR my point stands.

schools act in loco parentis (and their charges are mostly minor children i might add). state officials do not (except in the nanny state - which i oppose, and i hope you do too (see: transfats in NY)).

added responsibility/role = added authority
6.26.2007 2:54pm
ATRGeek:
Kevin!

Once again, Vernonia, as I noted, was about investigating actual drug use, not speech.

However, I agree this is basically a repeat of Fraser. And I think Fraser is just as nonsensical: it just substitutes "Sex is bad, m'kay?" for "Drugs are bad, m'kay?" And just as with this decision, there is no real reason to restrict whatever interest the state had in Fraser to state schools in particular.

Indeed, the state has a legitimate interest in protecting CHILD health and safety, not just STUDENT health and safety as you claimed. That is another clear demonstration of how your sort of argument for a speech restriction really has nothing in particular to do with schools.
6.26.2007 2:58pm
Kevin!:
ATR,

Seems like this gets into a default-authority question. Do school authorities have the power to keep order and prevent disruptions UNLESS overridden by a stronger societal interest like free speech? Or do school authorities have no power unless they can demonstrate that their interest in keeping order overrides all the student's constitutional rights? Seems more like the former, to me... if only because of the necessity of running a campus without fear of litigation.

A second rationale is that school authorities are a policing body between students. They probably can't grab a student if they feel like it. But if that student is beating up a Freshman? Yes, then they have that authority. In other words, they would have whatever authority is necessary to PROTECT other students. So if the Supreme Court found that drug advocacy harms other students, then presumably the school has that necessary level of authority to suppress it.
6.26.2007 2:58pm
ATRGeek:
whit,

First, let me remind you again that you are the one who introduced the analogy to state employers. If you want to dump it now, fine.

Anyway, one more time, having agreed that state school officials have more limited authority than parents, I am now waiting for you to explain exactly why this particular execise of power fell within the limited authority of state school officials.

So, what is your explanation?
6.26.2007 3:02pm
whit:
i'd agree with kevin, with the qualifier that when he says "school" i would clarify that to mean, elementary, junior HS, high school, etc. (iow, NOT college).

i would draw a very bright line between college -where i think kid's have far more personal responsibility for their own safety, etc. and a high school, etc. where a much higher burden is placed on the school to protect the students and a much greater authority is granted to them in general and not just in regards to safety - in regards to decorum etc.

i would argue that a college student should have every right to walk around campus with a "christians suck" t-shirt.

i would argue that a high school would have every right to restrict that t-shirt.
6.26.2007 3:03pm
Kevin!:
ATR,

Vernonia involved a different civil liberty (search/seizure), which is arguably MORE important then free speech. But so what? It still says that "Drugs, mkay," is a vital issue in the educational context, and that, more to the point, a big portion of the drug problem is a drug-permissive atmosphere and casual drug-positive advocacy. Those are speech, not illegal activity. Perhaps this is stupid! But it is settled. Morse just weighs this Vernonia interest against the Free Speech interest. Speech loses. But it should not be a surprise post-Vernonia.

As for the school distinction... the law has always made a big deal about a difference between public places and non-public places. Schools, workplaces, prisons, and so on. It's not a perfect distinction. Certainly, to take an example, racial slur t-shirts are a problem outside of the workplace as well. But there's something about the conjunction of a captive audience, a system of placing yourself under authority, etc. that makes these places Different.

We already enforce speech restrictions for the Sake Of the Children. Or did you hear F-k on TV during daylight hours? We just do MORE once they're under the state's actual care and authority.
6.26.2007 3:08pm
ATRGeek:
Kevin!,

In the first paragraph you are changing the question. If the school official wanted to argue that the speech was actually disruptive, then we are back to Tinker. But that was not the rationale for this holding.

Your second paragraph, of course, is getting to the real holding. Again, though, the problem is that your police power argument has nothing in particular to do with schools. For example, take your claim:

"So if the Supreme Court found that drug advocacy harms other students, then presumably the school has that necessary level of authority to suppress it."

And now substitute:

"So if the Supreme Court found that drug advocacy harms other [children], then presumably the [state] has that necessary level of authority to suppress it."

Why isn't that a valid argument? What exactly about your argument actually depends on the childhood speech in question being done in a school, rather than anywhere else that children speak to each other?
6.26.2007 3:09pm
Kevin!:
My post directly above gets to the School/Non-School difference. I think the bottom line is "Balancing Tests are a pain, but what choice do we have?'
6.26.2007 3:14pm
ATRGeek:
whit,

You have distinguished parents, state employers, and state college officials. What you have not done is actually explain why this particular exercise of power actually fell within the limits of a state high school official's authority. I'm still waiting for that explanation.

Kevin!,

Where in Vernonia does the Court say, "a big portion of the drug problem is a drug-permissive atmosphere and casual drug-positive advocacy"? You claim that you are not blurring the distinction between actual durg use and speech about drug use, but it seems to me that the way you cite Vernonia is doing exactly that.

And again, like whit you are citing propositions like that the student are under the authority of school officials as if a generic claim like that answers the question. But once you realize that the authority in question is limited, you then have to explain why any particular exercise of power falls within the limits of that authority.

By the way, I agree that the Pacifica case was another, "Sex is bad, m'kay?" moment for the Supreme Court. And I would also agree that their rationale for limiting Pacifica to radio-wave broadcasts is pretty much nonsensical, although that is precisely what the Court did in later cable and internet indecency cases.
6.26.2007 3:19pm
ATRGeek:
Kevin!,

Tinker created a balancing test too. But the key question is what gets on the list of factors you can balance.

So, under Tinker the state can only balance things like preventing actual disruption to the school's activities. But now you want to add to the balancing test factors like some general interest that the state might have in children not taking illegal drugs. Again, that is precisely the sort of non-school-specific factor that makes it nonsensical to claim that this balancing test should apply only to children while they are in state schools.
6.26.2007 3:23pm
John Herbison (mail):

"Justice Alito's opinion, as the narrowest grounds offered by any of the Justices whose votes were necessary for the majority, thus seems to offer the controlling legal rule."

Given that Justice Alito (as well as Justices Scalia, Kennedy and Thomas) joined Chief Justice Roberts' opinion, I'm not sure that's correct. My understanding of Marks v. United States is that, had Alito (and/or Kennedy, who joined Alito's concurrence) concurred in result only, then the Marks rule would have applied because no single rationale would have had the assent of five justices. If Alito had wished to narrow the scope of the decision in that manner, he could have done so, but he did not.
6.26.2007 3:28pm
Kevin!:
For Vernonia I would quote:

"It seems to us self evident that a drug problem largely fueled by the "role model" effect of athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs."

"As for the immediacy of the District's concerns: We are not inclined to question--indeed, we could not possibly find clearly erroneous--the District Court's conclusion that "a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion," that "[d]isciplinary actions had reached `epidemic proportions,' " and that "the rebellion was being fueled by alcohol and drug abuse as well as by the student's misperceptions about the drug culture.""

"And of course the effects of a drug infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction."

As per the school authorities thing, I went into it above.

"As for the school distinction... the law has always made a big deal about a difference between public places and non-public places. Schools, workplaces, prisons, and so on. It's not a perfect distinction. Certainly, to take an example, racial slur t-shirts are a problem outside of the workplace as well. But there's something about the conjunction of a captive audience, a system of placing yourself under authority, etc. that makes these places Different."

"A second rationale is that school authorities are a policing body between students. They probably can't grab a student if they feel like it. But if that student is beating up a Freshman? Yes, then they have that authority. In other words, they would have whatever authority is necessary to PROTECT other students. So if the Supreme Court found that drug advocacy harms other students, then presumably the school has that necessary level of authority to suppress it."

Also, as for the Tinker distinction, I wrote:

"What makes it different from Tinker-style disruption is that drug-based disruption is pervasive, slow to develop, and hard to monitor. Therefore, protecting student health and safety requires banning it from the outset."

Hope that answers your questions.
6.26.2007 3:33pm
ATRGeek:
To sum up a bit:

In cases like Morse and Fraser, and indeed Pacifica, I think the Court, as others have claimed, is basically just inclined to dump normal First Amendment analysis because these cases deal with children and speech involving sex and/or drugs, which the Justices find particularly disturbing. The problem is that the Justices don't want to make that reasoning too explicit, so they package their holdings as a contextual issue: the problem is not sex/drugs and children, but rather sex/drugs, children, and SCHOOL, or sex/drugs, children, and RADIO-WAVE BROADCASTS.

But on closer examination, it becomes obvious that the bolded factor (SCHOOL or RADIO-WAVE BROADCASTS) is nonessential to the reasoning. Rather, it is just there to provide cover for what is really an end run around the First Amendment, motivated by the fact that the speech in question involves children and sex/drugs.
6.26.2007 3:36pm
Special Guest:

Given that Justice Alito (as well as Justices Scalia, Kennedy and Thomas) joined Chief Justice Roberts' opinion, I'm not sure that's correct. My understanding of Marks v. United States is that, had Alito (and/or Kennedy, who joined Alito's concurrence) concurred in result only, then the Marks rule would have applied because no single rationale would have had the assent of five justices. If Alito had wished to narrow the scope of the decision in that manner, he could have done so, but he did not.


Don't scare us, John Herbison! It's true that Marks (and Grutter discussing Marks) couches in terms of "concurring in the judgment." But Alito made very clear that he was concurring only on the grounds that his narrowed view takes precedence, starting his opinion with the statement that "I join the opinion of the Court on the understanding that it goes no further than to hold ... " Whether or not he formally titled his concurrence "concurring in the judgment" shouldn't really matter, since he very clearly states that he's only concurring on the narrow grounds he sets forth.
6.26.2007 3:44pm
ATRGeek:
Kevin!,

The distinction in question is right there in your citation from Vernonia: "... is effectively addressed by making sure that athletes do not use drugs". There is nothing there about making sure athletes do not speak favorably about drugs, which is the leap you are making.

That said, I would agree that Scalia's opinion in Vernonia does express the same sort of hysteria about drugs that motivates the Court's frequent "drugs are bad, m'kay?" decisions.

As for your police power arguments, citing the state's interest in the healthy and safety of children again has nothing in particular to do with schools. Indeed, even if you eventually cite only the indirect harm to public education as the ultimate purpose of prohibiting child speech celebrating drug use (an odd limitation since I suspect that is only one of many alleged harms of illegal drug use), there is no reason to claim that only speech in school can have that effect.

I'm not sure how to make the problem any clearer. It is actually quite an odd thing to say that the state has the authority to regulate a child's conduct because of the state's interest in the health and safety of children--but only if the child is in a public school at the time. There are limited situations in which that limitation makes sense, but in order for that limitation to make sense, there must be some tight connection between the harm of the conduct in question and the conduct occuring in the school environment.

That is what is missing in your argument, and the Court's as well--the alleged harm to children of speech celebrating drug use has no obvious tight connection to schools. So, the only logical conclusion is that the Court's reference to the school environment is just a pretext.
6.26.2007 3:53pm
Anti-schooler:
Under a fully robust reading of the First Amendment, the end result is that having goverment-run schools, with compulsory attendance, is unconstitutional.

No need to split hairs between advocacy of drugs, advocacy of illegal behavior, celebration vs. advocacy, and all that.

The strongest view of the First Amendment is that the Govt. cannot tell people what to say or not say, and surely not what to THINK.

The very purpose of a school is to indoctrinate students to believe some things, and not others. And the school forces those students to spit those things back out on a test, and face good or bad consequences accordingly.

Sure, some of those things we might reach "factual" consensus on, e.g., 2 + 2 = 4, Paris is the capital of France, Washington died in 1799. And 95-99% of us might agree that "racism is bad" or "slavery is bad." But it's still indoctrination. And it's not a far step to "the earth is round" -- "no! My dad, and for Free Exercise's sake, my minister, say that it's flat! And that evolution didn't happen, and that homosexuality is good/bad, etc."

In sum, school is about indoctrinating with orthodoxy, and the First Amendment is about NOT doing that. Irresistible force, meet immovable object.
6.26.2007 9:07pm
Randy R. (mail):
"In sum, school is about indoctrinating with orthodoxy, and the First Amendment is about NOT doing that. Irresistible force, meet immovable object."

It is truly difficult to get any student to think for themselves. Most schools and teachers are against any student thinking for themselves.

Would that it be better that a student discovers for himself that Paris the capitol of France....

One of my friends is a piano teacher, and he says that the hardest thing is to get students to ask questions. Even if you get that, it's even harder to get them to ask themselves questions, ie, self-examination. However, he realizes that only by asking questions can you fin dhte true answers that you need, but that is the basis of all education.

Unfortunately, asking questions makes teachers, administrators and parents very uncomfortable, and so it is discouraged.
6.27.2007 1:07am
David M. Nieporent (www):
Vernonia was a terrible decision, to be sure. But Kevin! badly misstates it. It did not hold that schools could test students for drugs. It held that schools could test student athletes for drugs. A key to the decision -- and to its successor decision, Earls -- was that the students being tested voluntarily chose to participate in the extracurricular activity.

While I would not be shocked to see the Drug Exception To The Constitution used to extend Vernonia/Earls to all students, the Court has thankfully not done so to date.

Given that, it simply has no relevance to this case.
6.27.2007 4:04am