pageok
pageok
pageok
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.

pageok