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Student Speech After Morse v. Frederick:
Just to respond to Eugene's very thoughtful post below about Justice Alito's concurring opinion in Morse v. Frederick, I personally didn't find the line Alito drew to be particularly difficult or illogical. It may be wrong, but I don't think it's difficult or illogical. As Eugene notes, Alito wrote that he joined the majority opinion with the following understanding:
(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.
As I read this passage, Alito's view is that public schools can restrict speech so long as a) "a reasonable observer would interpret [the speech] as advocating illegal drug use" and b) the relevant speech cannot "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."

  Under this approach, there are a range of different statements that student speech can try to make, as well as a range of different interpretations that school administrators can make of the student speech based on the context. To determine whether the speech is protected, the court should first inquire if "a reasonable observer would interpret [the speech] as advocating illegal drug use"; if the answer is yes, the next question is whether the speech could be "plausibly . . . 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 the second answer is "yes," then the speech is protected; if the second answer is "no," it is not. The result is a narrow type of student speech that school administrators can ban: in a nutshell, speech reasonably read as encouraging the use of illegal drugs that doesn't seem to have any other message.

  Eugene suggests that the line between the two categories isn't coherent, but I disagree. As Eugene notes, speech can both advocate illegal drug use and comment on a social or political topic. But I read Alito's part (b) to account for that and deem the speech protected (or at least to say that nothing in Morse permits it to be banned, which I assume means by default that it is protected). The speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic. At least that's how I read the opinion.

  Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

  To be clear, I'm not sure I agree with the line Alito drew. I personally find the idea that pro-drug student speech poses special dangers to student physical safety to be pretty odd. What's the connection? Is the idea that students will hear pro-drug speech, start doing drugs, become addicts, and then become violent in class? Alito doesn't say; he points to the majority's argument, but that majority's analogous point seemed to be about the harms of drugs among schoolchildren generally rather than the threat of physical violence. And as Eugene rightly notes, we don't know what other categories might also pose these "special dangers." But while I'm not sure I agree with Alito's line, I think the line is likely to be a relatively coherent one in practice.
Prince Roy (mail) (www):
Honestly, I must make the point again: anyone who argues that a reasonable observer would interpret that sign as advocating illegal drug use, has likely taken a few too many bong hits for Jesus him/herself.
6.26.2007 2:23pm
Nels Nelson (mail):

Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic.


Shouldn't that be that it's protected because a reasonable observer wouldn't interpret the statement as advocating illegal drug use (let alone any illegal activity)? If it fails the first test there's no need to apply the second, correct?
6.26.2007 2:24pm
OrinKerr:
Nels,

That's right under Morse; but then there's the question of what other catgeories of dangerous student speech might exist (as Eugene explains) . So my point is that even if there is such a category, this speech would be protected.
6.26.2007 2:27pm
H-Bomb (mail):
"The speech is only protected if it only advocates illegal drug use and can't reasonably be read as commenting about a political or social topic."

Unless there's a "not" missing before "protected," isn't this the opposite of Alito's reasoning?
6.26.2007 2:33pm
Carolina:
What exactly, is the real difference between "Marijuana is fun to smoke and you should try it" and "Marijuana is fun to smoke and it ought to be legalized so we can all smoke it without being arrested."

Splitting hairs to create a substantive difference in those two statements seems akin to "magic words" jurisprudence.
6.26.2007 2:34pm
eddie (mail):
This was judicial activism at its finest. What are the Supremes doing making factual findings. Are they saying that as a matter of law the sign had an unambiguous meaning. What about a sign "Kill all fags" from the church of God-Hates-Homos. (Or does religious freedom trump a student's restricted freedom?) Or what about a sign that said "Free Sex for All"? Is the SC going to go through all of these permutation to give us the menu of "proper" speech. To say that this sign had even a colorable chance of affecting imminent (and disruptive) actions is simply breathtaking. Sort of like saying that the Vice President is not part of the Executive branch.

This is not reasoning, this is results-based judicial anarchy.
6.26.2007 2:49pm
Fub:
The events leading to Morse v. Frederick originated in Alaska.

Two questions.

Has Alaska's Ravin v. State decision has been overturned?

If not, then how can the message "Bong Hits 4 Jesus" reasonably be construed as advocating illegal activity?

Just asking. Not wedded to any answer to either question.
6.26.2007 2:53pm
OrinKerr:
Eddie,

I'm confused. What factual finding did the district court make that the Supreme Court was required to defer to? Or is your point that you liked the dissent's interpretation more than the majority's, and therefore that the majority was engaging in "judicial activism" by deferring to the school board's reading?
6.26.2007 2:54pm
Respondent (mail):
I don't see why Alito held in this case that the student's speech was unprotected. After all, the sign could plausibly be interpeted as saying that Jesus likes marijuana use. That's an act of religious expression that doesn't seem any less worthy of protection than "homosexuality is an abomination", which I have no doubt Alito would have found protected.

Carolina,
That's why the Brandenburg standard is sensible. Other than denying a state without its consent equal representation in the Senate, any unlawful act can be made lawful by changimg the law or amending the constitution. I happen to think that your argument makes a good case that the Morse standard isn't a good one, even if it is coherent. If we're to reject Justice Thomas's view of no free speech rights for students, then the only sound additional speech restriction that makes sense to be able to be prohibited in the classroom is speech that directly and substantially inhibits the functioning of class. If we can agree that advocacy of illegal conduct is constitutionally protected, why is it is less so in school?
6.26.2007 2:59pm
Robert West (mail) (www):
Fub: that's an interesting question. The voters of Alaska passed a ballot initiative recriminalizing marijuana possession in 1990, but in 2003, a state appeals court ruled (Noy v. State) that said initiative was a violation of the state constitution. The state appealed and lost.

However ... the event in question took place on January 24, 2002, at which time, the recriminalization initiative was still binding.
6.26.2007 3:22pm
Special Guest:
So could a student unfurl a banner that said "Marijuana is not an abomination" or simply "Marijuana is good"? I really don't think there's such a clear line.

Consider this -- you're the teacher advisor to a high school branch of the group called Students for Sensible Drug Policy (a real student group, by the way). At your high school, student groups are allowed to set up outreach tables at lunch to present their views to other students. How do you advise the group on what exactly they can say without getting suspended or expelled? Keep in mind that these are smart, ambitious students -- maybe future lawyers -- to whom being disciplined would be a serious detriment to future schooling and careers.
6.26.2007 3:33pm
SDM (mail):
What does Doug Ginsburg think about all this, I wonder?
6.26.2007 3:33pm
Special Guest:
The more I think about this case, the more it really, really, really bothers me. (Yes, three reallys). The drug war, and its consequent epidemic of violence incarceration, is as serious and contested an issue as the Vietnam war was for previous generations. The Court should be making rules to protect drug-poliicy related speech, not rules that possibly chill drug-policy related speech.
6.26.2007 3:48pm
Carolina:
Agreed, Special Guest. The "war on drugs" has led to a laundry list of special exceptions to the 4th Amendment, and now appears to be nibbling at the 1st. Not a good thing, in my mind.

Never in my wildest dreams did I think the Court would rule this way. Based on oral argument, I was expecting something along the lines of "Under Tinker, disruptive speech is verboten, and unfurling a pro-drug banner at a public school event is disruptive." Instead, we get the creation of another category of unprotected speech, suggesting that the same sentiment, even expressed on a flier and passed out after school, would be unprotected. In other words, pro-drug use statements by a student are the legal equivalent of "fighting words."
6.26.2007 3:58pm
DJR:
"a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic."

Of course, isn't a prank a form of expressive conduct, saying in effect, "Look at me! I am funny and cool!" Why would the existence or not of a serious "political or social topic" be determinative?
6.26.2007 4:01pm
K Beagle (mail):

"Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority."


So that means that anti-drug messages can be reasonably interpreted as encouraging drug use, since (as we all know) teenagers act in a contrarian rebellious way.

Right?
6.26.2007 4:07pm
ATRGeek:
I think Alito's distinction is nonsensical on its face, but even it wasn't, it was certainly nonsensical in application. I'm still not sure what "Bong Hits 4 Jesus" was intended to mean, but with the inclusion of "4 Jesus", it seems to me the presumption should be that this expression falls within the presumably broad category of "commenting on a social issue".

In fact, I think Professor Volokh (at least as I interpreted him) is right: if you are advocating in a public display that people should break some law, I'd say that alone should trigger a presumption that you are commenting on a political or social issue. Private speech might be a little different (eg, I would agree that turning to a friend and saying, "You should do a bong hit," is a bit different than telling the public, "Do bong hits," (for Jesus or otherwise)). Similarly, commercial speech might also be a little different ("Selling bong hits here!"). But this sort of public display should enjoy a presumption of commentary.
6.26.2007 4:08pm
Justin (mail):
Orin Kerr,

While I'm not sure I agree with the original poster, I'm not sure you're being completely fair with your set of choices. The Supreme Court could have remanded to the district court to determine what meaning, if any, the sign had, and could have even provided the right subjective/objective standard.

Now, I don't personally think the Supreme Court necessarily should do that - it seems like a waste of resources to at least some degree - I do think that's more the kind of thing the OP was getting at.
6.26.2007 4:53pm
Elliot123 (mail):
If we wrote Alito's opinion in C++ computer language, the following would work. &&means AND. ! means NOT.

speech.Allowable = ALLOWED; //allow all speech
if( ( speech.Content == DRUGADVOCACY) //pro-drug content
&&(!speech.Content == SOCIALCOMMENT)) //no social comment
{
speech.Allowable = NOTALLOWED;
}

Therefore,
1. All social comment is allowed.
2. All social comment about non-drug issues is allowed.
3. Pro-drug content lacking social comment is not allowed.
6.26.2007 4:59pm
Justin (mail):
Elliott, I think your post either misses or captures one of the major problems. C++ speaks in binary, and things either are (1), or are not (0). Public expression, on the other hand, is a far more varied and ambiguous activity.
6.26.2007 5:01pm
Elliot123 (mail):
Correction:
1. All social comment is allowed.
2. All social comment about non-drug issues is allowed.
3. Pro-drug content lacking social comment is not allowed.
6.26.2007 5:02pm
Gaius Marius:
The student's attorney should have argued at district court that the student's speech was protected religious speech/activity.
6.26.2007 5:03pm
OrinKerr:
Justin,

I think you're missing the point of my question: What's the precedent for saying that the meaning of speech is a question of fact for the trial court? I don't have a problem with that, but I'm not sure I've seen it done in the 1st Amendment context before.
6.26.2007 5:07pm
Elliot123 (mail):
Justin,

C++ certainly does speak in binary, which is a comfort at times. However, Alito's opinion appears to be binary also. Ideas and comment about that opinion will have all kinds of nuance, and I doubt they could be coded so concisely. But the first thing that struck me about the opinion was the use of the two conditionals and the word "and."
6.26.2007 5:08pm
James Ellis (mail):
I think Eugene's observations are quite pertinent and thoughts along those lines fueled the Thomas opinion. Not may kids will carry around placards extolling the virtues of drugs while at the same time lobbying for their continued illegality. Implicit in the approval of most activity is the suggestion that the activity should be permitted...

Further, it's hardly a bright line or workable rule when the formal application of the rule to the speech might very well serve to move the speech from one side of the line to the other.

The kid who wears a "BONG HiTS 4 JESUS" T-shirt today is clearly protected (by my reading of the Alito rule), while the kid who thought it up got suspended! The original use purportedly advocated illegal drug use, while the derivative users are just commenting on "any political or social issue," in this case, the First Amendment in schools, the propriety of the Supreme Court decision, etc. etc.

So we have to add another subroutine to the C++ program...if the statement has been run through the loop before and come out NOTALLOWED, then it is thereafter allowed.

It just seems that Alito wrote his rule in the mud while sliding down Tinker's slippery slope.
6.26.2007 5:36pm
Justin (mail):
"Justin,

I think you're missing the point of my question: What's the precedent for saying that the meaning of speech is a question of fact for the trial court? I don't have a problem with that, but I'm not sure I've seen it done in the 1st Amendment context before."

Orin,

I have never researched the question - but it seems pretty intuitive to me that intent is a factual question, although perhaps a question of mixed law and fact. In a contract case, wouldn't a defense of mistake be subject to a factual determination?
6.26.2007 6:11pm
Whadonna More:
Honest question - is there other 1A jursiprudence that turns on the government's own determination of the speakers' intent? If so, how are lap dances still protected?
6.26.2007 6:12pm
Kelvin McCabe:
As far as i am awares, it is still legal to possess up to 1 oz of usuable marijuana in your home in Alaska. The current governor has been attempting to recriminalize pot along with enhancing penalties for other drugs, but at last check, he was not yet successful with regard to pot.

Besides, what good would a statute do if the alaska sup ct has already said that the private possession of 1 oz of marijuana or less in the home is CONSTITUTIONALLY protected under Alaska's expanded privacy rights in their state constitution? Any statute regarding penalizing pot would have to focus on possession outside the home, or in amounts greater than an oz, which are already on the books. The governor, in attempting to recriminalize small amounts in the home, is fighting a losing battle.

For the record, he has argued that standard ONDCP meme, "today's pot is stronger and more dangerous than what we smoked in the 60-70's so we must fight this with all the money and power the State can bring to bear bla bla bla save the children bla bla bla." This is his way of attempting to get around the precedent.
6.26.2007 6:21pm
OrinKerr:
Justin,

I haven't researched it, either -- but I think we would need to research it before criticizing the Court for not following a rule that may not exist. In particular, I vaguely recall that standards of review in the 1st Amendment context are often different: the Court has been concerned that trial judges will "find facts" that are impossible to overrule under the clearly erroneous standard, so they give the appellate courts de novo review instead even if the issue seems vaguely factual. But that's just my vague recollection.
6.26.2007 6:34pm
OrinKerr:
Kelvin,

Why does that matter? It's still a federal offense, right?
6.26.2007 6:35pm
Justin (mail):
Perhaps. I'm certainly no first amendment scholar. But certainly this case is evidence (one way or another) about the WISDOM of allowing appellate courts to engage in such factfinding, particularly when the lower court has not undertaken the factfinding in the first instance.

Also note that de novo review does not mean that factfinding is okay in the first instance. Under Markman, district courts' construction of a patent is subject to de novo review, but the Federal Circuit would rarely, if ever, take the first shot at constructing a patent, and generally (uniformly?) give the district court all subsequent shots (subject to the court's reason for reversing), even when reversing. So de novo review is not necessarily a license to engage in original factfinding in any event.
6.26.2007 7:00pm
Hattio (mail):
Kelvin McCabe,
First, the governor of Alaska is no longer a "he." She is Sarah Palin, hottest of the governors by several recent polls, and also the highest approval rating.
But, her predecessor Murkowski was indeed attempting to re-re-illegalize pot. The reason he thought passing another statute (with legislative findings regarding increased potency and dangerousness today) would be effective requires you to look at Ravin (the original 70's right to privacy case), Erickson (one shortly later that refused to extend the right to privacy to cocaine use in the home) and Noy (the recent case you mentioned). Essentially Ravin said that Pot was not harmful enough to overcome the citizen's right to privacy if it was used in the privacy of the home by adults. Erickson said cocaine was harmful enough. Noy said the legislature would have to make specific findings regarding harmfulness. So, the last governor thought he could get it through with Legislative findings of the increased danger of 00's pot over 70's pot. Of course, I am drastically simplifying all three cases.
6.26.2007 7:59pm
curious:
First, the governor of Alaska is no longer a "he." She is Sarah Palin, hottest of the governors by several recent polls, and also the highest approval rating.

Yes, she is a GILF!
6.26.2007 8:41pm
Randy R. (mail):
Whatever. At least the opinion was not penned by Harriet Miers.
6.26.2007 9:55pm
whit:
"Instead, we get the creation of another category of unprotected speech, suggesting that the same sentiment, even expressed on a flier and passed out after school, would be unprotected. In other words, pro-drug use statements by a student are the legal equivalent of "fighting words"

correct me if i'm wrong, but didn't the decision rely on the "fact" that this was a "school event?"

in other words, wouldn't a student passing out a flier OFF CAMPUS still be protected speech?

like i said, i'm all for giving school admins wide latitude in the school setting (school events and on campus), but this does not apply to stuff outside of school.
6.26.2007 10:23pm
Dave1L (mail) (www):
Who is to say that "rebellion for the sake of rebellion" is not a social commentary? Is advocacy of anarchy not protected speech? Would the statement: "The school administrators are bad, we should break school rules to protest" not speech that would have been protected?

There is serious danger in getting the court into the business of deciding what speech is social commentary and what speech is "rebellion for the sake of rebellion." I am sure that in Joe Frederick's 18 year-old eyes, his speech had plenty of meaning.
6.27.2007 1:14am
Kenvee:
Dave 1L said:

There is serious danger in getting the court into the business of deciding what speech is social commentary and what speech is "rebellion for the sake of rebellion." I am sure that in Joe Frederick's 18 year-old eyes, his speech had plenty of meaning.


But that's exactly what Roberts pointed out. The principal (and the Court) came up with numerous reasonable pro-drug meanings for the statement. Despite multiple opportunities to claim some kind of meaning, the most Fredericks came up with was "it was gibberish because I wanted to get on TV." Roberts pointed out that "I wanted to get on TV" is an ends, not a meaning behind the phrase. When faced with one side claiming a statement is pro-drug and one claiming it's political commentary, a court may well (and probably should) err on the side of speech and allow it. But when faced with "pro drug" versus "gibberish"?

Besides, I think the whole point was that the principal, acting on the spot and in hurried circumstances, made the determination that it was pro-drug. As long as her determination was reasonable, the Court deferred to it. That's a pretty rational way of going about it, IMO. Let the people on the ground make the decisions and don't interfere unless you must.
6.27.2007 10:49am
markm (mail):

So that means that anti-drug messages can be reasonably interpreted as encouraging drug use, since (as we all know) teenagers act in a contrarian rebellious way.

Right?

There you go again, trying to apply logic to governmental action...
6.27.2007 11:51am