The T-shirt -- judging by the appendix to the complaint -- seems to be this one:
And as I read the school district's argument (p. 13), the district admits this, arguing that the then-7th-grader's T-shirt violated a school dress code banning any "suggestion of tobacco, drug or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter."
That strikes me as a clear First Amendment violation under the Supreme Court's decision Tinker v. Des Moines School Dist. (1969). If junior high school students have a constitutional right to wear a black armband to protest the Vietnam War, at least until there's some serious evidence that the armband is likely to cause substantial disruption, they must have an equal right to wear a T-shirt to protest abortions.
And nothing in the school district's motion suggests that the student was ordered to change shirts because of a risk of disruption; the school district apparently thinks that it can just categorically ban any T-shirts that deal with this "inappropriate" "subject matter." One might argue, as Justice Thomas has (and as Justice Black before him had), that Tinker should be overruled; but it's the law, and school districts should comply with it.
The case is discussed in more detail -- though not as to the First Amendment claims -- in T.A. v. McSwain Union Elementary School Dist., 2009 WL 1748793 (June 18). For a similar case, which apparently led to an agreement by the school to allow such T-shirts, see here.
Related Posts (on one page):
- The Limits of Morse v. Frederick:
- Junior High School Student Ordered Not To Wear Pro-Life T-Shirt:
She's not asking to wear a blue armband, but a t-shirt with some fetus pictures on it. NOT the same thing.
If they can ban "Bong Hits 4 Jesus," why not this shirt?
Yeah, that's not how arguing by analogy works. It's not enough to say that 2 things aren't the same. You have to say how they're different and why that difference is legally relevant.
I suppose school districts would love it if Tinker could only be read to prohibit the banning of arm bands, but that's almost certainly not the case.
they would have to show that they were trying to convey a pro-choice message, and the t-shirt interfered with that.
Can you please read the original quote? I was pointing out the inconsistency in the analogy.
Thanks!
Look at the pictures on the shirt.
Your snark is better than mine.
Isn't that what they did? I can't tell from the picture how gory it is, but that would be my guess.
They're live, not dead, correct? Or are live fetuses gory?
It's a picture of a live human fetus. How is that gory or explicit?
(2) If you look at the pictures on the shirt, you see pictures of normal fetuses. The "gore" there is quite minimal, it seems to me; to be sure, there is some blood visible, because that's what normal fetuses look like, but I can't see how that alone would justify a restriction.
(3) A T-shirt might be more distracting and therefore potentially more disruptive than an armband (though not by much, I think). But the school district nowhere suggests that its decision was based on any evidence or actual or likely disruption.
Okay, I'm looking at pictures that could easily have come from one of the school's health textbooks. What now?
You have to wonder how different the pictures on the shirt are from pix in standard H.S. biology, health or human reproduction texts?
If you read the response, they basically don't make any argument at all. They simply say that (i) the school has discretion to determine what is and is not inappropriate and (ii) the shirt is inappropriate (as determined by us in our sole and absolute discretion). There literally isn't a word in complaint as to why the administrators found her clothing to be inappropriate.
or the sonogram pictures that most of us have been shown by our expectant co-workers at one point or another.
As far I can tell, they don't suggest their decision was based on anything (other than that they found that the shirt was "inappropriate").
Then all they can hope for is Justice Thomas.
That said, this case is clearly wrong under the current law, and Ruufles is either COMPLETELY ignorant of the underlying arguments/issues or he's actively trying to derail the comments by provoking people. (AKA: Trolling)
Ignore him. One would think the comments on THIS blog for a first amendment post would be a little more thought-out than we've seen so far. Let's move on.
They are. It is the important duty of the school to instill in the students respect for the law (see Morse, all over the damn place) and the law of the US is that we must accord women their constitutional liberties to terminate their pregnancy in the first trimester. Failure to ban this shirt would send a powerful message that the laws against banning abortion are not to be respected (again, quoting CJR Morse quite directly).
[ Note, to anyone that would reverse Morse (and Harper v. Poway), I don't intend this for you. ]
Let's let these students speak their minds. (And thankfully, if these students find they need an abortion at some future point in their lives, the law will protect them in that respect as well.)
Just so I'm clear, you're attacking Morse, correct? (BTW, IIRC, Harper's dunfer, vacated, no?)
The model on the shirt isn't wearing a shirt, and is under 18, so it's obviously disruptive kiddie porn, no?
I find that Tinker generally isn't followed by lower courts.
Let's not forget that Morse settled for $50,000.
Burn the books, of course!
/otherwise agrees with Daniel Chapman
It may not be gory, but it's explicit. It explicitly shows what a fetus looks like, and by connecting it to the word "Abortion," it explicitly shows what an abortion eliminates. We can't have that.
I did. They are pictures of a fetus in utero-no blood or gore. I am willing to bet similar pictures could be found in a biology textbook. Shoot I have a really cool book I bought for my older kids, when I was pregnant with their younger sibling that has pictures of a fetus in utero. No gore involved.
I don't see anything offensive at all about this shirt-other than some may not agree with the message.
How would it get overruled if everyone complied with it?
I mean this sincerely, not snarkily.
Thanks.
I never understood why the need to run an orderly school trumped free speech rights.
I also don't understand why it wouldn't trump, say, freedom of religion for schools in religious comunities. If we have to teach kids what's what, and the community believes that the world was created by God, why shouldn't they tell them that the world was created by God?
Even if your extension of Morse were correct (it's not, more on that below), how does this shirt communicate that women should not be accorded their constitutional right to first-trimester abortion? You're taking inferential leaps from assumptions that you aren't entitled to make in the first place.
Is your reading of Morse that "respect for the law" means that students are not allowed to advocate changing existing law? Because if it is, it's time to reread Morse.
Yes, although more important than getting the "right answer" (reversing Morse and establishing the right of students to advocate for changing the law) is being consistent. That is, while I want Morse reversed, until that point I want it goring everyone's ox evenhandedly.
Under the logic of Morse, this case is a no-brainer -- the law says it's illegal to deny a woman the right to murder her fetus, the student's speech clearly advocated denying a woman the right to murder her fetus. Therefore the student is advocating illegal activity and can be punished consistent with the school's longstanding mission to instill respect for the law.
You're going to have to explain that to me, because I'm a little slow.
How does "bong hits 4 jesus" communicate that students should smoke bongs? If anything, this shirt is more egregiously in the wrong because it's actually clearly written (as opposed to being stoned nonsense whose interpretation is highly dubious).
The T-Shirt communicates "abortion is wrong" and, by obvious inference, that it should be made illegal.
Morse communicated that bongs hits are for jesus (aka, good) and, by obvious inference, that they should be made legal.
I'm sure there's a distinction between advocating breaking the law and changing the law in there somewhere.
I agree with you about Morse though.
What is the difference between saying "bong hits are good for your health" and the obvious inference that any high school could make "bong hits are good for your health and therefore they should be legal?
What is the difference between saying "Abortion is murder and is wrong" and the obvious inference "Abortion is murder and is wrong and therefore should be illegal"?
If Morse had put in fine print at the bottom of his poster "and therefore should be legal", would his legal argument be any different?
The following is an incomplete list of the things that I think are wrong, but whcih I do not believe should be prohibited by the sate:
-Mild corporal punishment of children
-Blasphemy
-Flag burning
-Alcohol abuse
-Adultery
-Racism
-Casual sex
-Ridiculing someone's weight
Let's ask justice Thomas:
(Dissent in Sanford Unified School District # 1 v Redding, p. 21.)
Halleluja! If only the pro-life crowd would appreciate that distinction, that would be a big help.
I think this distinction is far too fine to make in actual practice. I don't see any principled way to determine whether a statement is (a) a value judgment about something in tension with the legal norm, (b) an exhortation to repeal the law in question and (c) an exhortation to break the law.
This shirt was so distracting that the school board and their lawyers were unable to proofread their brief. I have made more than my share of similar mistakes, but the captions to arguments B and C both urge that the complaint "should be dismiss". Or given the consistency of the error, was this intentional? Has this particular court gone to zero based construction?
Except that "abortion is murder" is quite clearly a indication that you think abortion should be prohibited by the state.
You've got two problems here.
First, you need to show me where this shirt makes the statement "abortion is murder and is wrong."
Second, you're not recognizing the difference between advocacy of illegal activity and advocacy of changing the law so that the activity is no longer illegal. The banner didn't say "Legalize Cannabis." It (arguably) advocated breaking the law.
I agree with you that Morse was wrongly decided. But the messages "Legalize Cannabis" and "Use Illegal Drugs" are not equivalent.
Cf. "Meat is Murder"
And you need to show me where this shirt says "abortion is murder."
I accept that, but how can you (in a principled way) tell the difference between speech that advocates taking drugs and speech that agitates for laws legalizing drugs?
In my mind, those two messages are so joined at the hip (after all, if you think drugs are good it follows logically that you should take them AND agitate for legalization) that to allow school administrators to decide if a particular message is in one category or the other is to effectively give them control over the whole shebang.
That being said, there is a little section of hell reserved for parents who insist on turning their pre-teens into walking billboards for whatever pet protest turns them on.
I'm not recognizing the difference because it's a distinction without a difference -- it involves splitting ever-finer hairs without any principles.
Morse's banner could (arguably) have advocated legalization of marijuana. Since the speech has some arguable constitutional merit, it must be protected.
Only after you show me where Morse's banner said "you should smoke marijuana".
If we are allowing administrators to make inferences, they are allowed to make them in all cases, not just when you approve of the inference.
I don't see any principled way to determine whether a statement is (a) a value judgment about something in tension with the legal norm, (b) an exhortation to repeal the law in question and (c) an exhortation to break the law.
So the rule is "when in doubt, ban" ??!
>"(c) an exhortation to break the law"
Break what law?
Because "respect for the law" doesn't mean "all laws must be kept as they are for eternity." Following the democratic process by which we change our laws, within constitutional limitation, is showing respect for the law. Any civics course in a public school will teach students that if they don't like the law, they have the right to petition their government to change it. It will teach them the process by which the law is changed. "All laws must be frozen in time from this point forward" is not a value that any public school has ever taught or will ever teach.
Not if you are a self-styled progressive like some of the folks above .... for them, living in "free society" is something we can take for granted. And a "truly free society" is one where they are never made to feel uncomfortable about anything.
In the context of a school, which has the right and obligation to discipline students and conduct lessons in an orderly way, you see no difference between a message that encourages students to violate rules and a message that urges them to work to change the rules?
Don't get stuck on the fact that the "Bong Hits 4 Jesus" banner was arguably ambiguous. Stick with the principle: can you or can you not see a difference between advocating violating the law and advocating changing the law?
Perhaps some (ie. Oren) thinks that there is a message to bomb abortion clinics and kill doctors who perform abortions, but I don't see how there is any admonition to break the law.
You don't know school officials very well, Yankev. Controversy? Oh no, we can't have that in OUR school! Let's ban it!
Neither liberals nor conservative have a monopoly on having their speech suppressed, I am afraid.
Nick
Perhaps, that subject was not as controversial (or only more popular with the powers that be.)
That seems to be the precedent set in Morse. If you want to reverse Morse and move to a "any ambiguity is resolved in favor of free speech" rules, I'll vote for it!
FACE.
Stick to their guns? Heck, they'll cling to their guns. And religion, too.
I can see the difference but the problem is that I don't trust school administrators to see the difference in any meaningfully consistent manner.
The left has already decided that speech questioning abortion does not get the same First Amendment protection as other political speech. See Hill v. Colorado. By contrast, Scalia defends flag burning. He may be a hypocrite in other areas, but on this one, his record is pretty good. The left's record is "good," too, if by "good" you mean defending speech you like but not speech that you don't like.
Again, you guys seem to think that junior high schools are hotbeds of liberal free speech. They are not. Your average junior high school administrator would prefer that no student ever wear any t-shirt that might upset a fellow student, liberal or conservative. They just don't like controversy.
Can I make a broader suggestion here? Liberals are guilty of this too, but a lot of conservatives do it especially often? Instead of worrying about whose ox is being gored, why not stick to the issue? Either you have a constitutional right to wear this shirt in school or you don't. That's far more important than whether a hypothetical school would censor an analogous liberal message.
Too many people want to prove that there's a big ideological conspiracy against them rather than simply discussing the issue at hand.
A picture of an aborted fetus, burned with saline solution and then hacked to pieces by an abortionist before being vacuumed out of the womb, probably would be so disgusting as to be bannable under a viewpoint-neutral dress code that disallows disturbing content. I would not object to that.
But there is absolutely nothing disturbing about a HEALTHY FETUS. There's no blood, gore, poop, pus, semen, decay, or anything else objectionable. It's not at all gruesome. It's beautiful.
If you think an image of a fetus is somehow objectionable, then you have humanity issues. If you hate humanity, that's okay. There are a lot of self-hating humans (especially in the D party, which, if you hate humanity, you've probable gravitated to). But please don't impose your hateful delusions on the rest of us.
I don't think much of the abortion protest cases, but the analogous case to an abortion protest case wouldn't be flag burning-- it would be, say, very aggressive picketing by gun control advocates in front of a gun dealership or gun show that threatens to prevent ingress and egress of law abiding citizens seeking to buy guns.
And I am not in any way sure that many conservatives wouldn't argue that the right to keep and bear arms is so important that it justifies time, place, or manner restrictions on this sort of speech.
"Abortion is Murder"
"Ban Abortion Now"
"Stop Abortions"
"Support Operation Rescue"
"Defy FACE"
"Scott Roeder: Hero"
First, as Prof. E. Volokh correctly points out, under the current line of precedents (TInker/Morse et al) the school should not have banned this shirt. (I think that Oren's characterization of Morse is incorrect- as EV pointed out in a previous comment, the limiting concurrence in Morse alleged that the incomprehensibility of the message was the problem; had it been overtly political, e.g. Bong Hits for Jesus because Marijuana should be legalized, the result would have been different). I do think that the lower courts have been much less expansive in following these precedents, and think that Prof. Volokh should briefly note this.
Second, it is interesting that so many commenters prefer to immediately go into the underlying message (abortion) as opposed to the free speech issue, Further proof that, as a general rule, people tend to advocate robust 1st Am. protection for speech they agree with. A better way tlo frame this is to think of this shirt, along with its ccompanion- a shirt with pictures of dead women, coat hangers, etc. advocating for choice. If you're comfortable with both, you support the 1st Am. If not, you're just bloviating about your political cause.
Finally, I think the most instructive comment was this:
That being said, there is a little section of hell reserved for parents who insist on turning their pre-teens into walking billboards for whatever pet protest turns them on.
This is someething I completely agree with. While I do not believe that children lose their constitutional rights at the schoolhouse gates (pace Tinker) and do not ascribe to J. Thomas's minimalist jurisprudence in the schoolsystem (stripsearching young girls for advil? really?), I think this comment is something to reflect on.
Would you go to your workplace wearing this shirt? I wouldn't. And I wouldn't want my kids going to school wearing this (or the pro-choice shirt) either. On their own, after school, on the weekends- more power to them. But as a parent, I have tried to inculcate a small measure of decency and respect in my children. I've often felt that people who express their political beliefs on t-shirts are often so vapid they could simply replce it with an "I'm with stupid" (with an arrow pointing up) t-shirt, but regardless, there is a modicum of civility that I hope my kids have, and I think that this reflects upon the parents.
(A whole separate issue is the lesson taught to children by a parent who rushes to the courthouse to litigate when their precious snowflake can't wear a particular type of t-shirt to school, but I have neither the time nor the patience to vent about that).
I remember my High School Dean being very creative in his interpretations of sex and music related t-shirts in order to ban them. "Appetite for Destruction" = advocating violence, for instance. Too much discretion is a bad thing.
I don't see ideological conspiracy, I see local administrators which, let's say "uncharitable", interpretations of what constitutes advocacy of illegal activity (vis-a-vis advocacy for a change in the law).
The dimwits in Morse are no better than the dimwits in Harper or this case just because they gore the other ox. Either you accept that discretion (and realize it will be used in different ways in different districts) or you make a bright-line rule that any speech with a plausible permissible interpretation is protected.
As an aside, I don't believe in "limiting concurrence". If Alito wanted to write the controlling opinion, he would have concurred only in judgment and thus be the narrowest grounds. The Opinion of the Court, when joined by a majority, is the only binding precedent.
I used to think this was accepted widely, but I've disabused by that notion, so I am aware that many differ.
The political cause I am bloviating about is free speech, not abortion.
You don't remember anything political at school Cornellian? No Che appareil? No red star motifs? No CCCP t-shirts? Colour me skeptical!
More broadly, why do people assume this is the parents' doing? In my day students were entirely capable of reaching radical political conclusions all by themselves, and of wearing visible propaganda for those conclusions. The examples above are just the most common.
What if I'm less concerned with supporting both and more concerned with ensuring that the one is treated exactly like the other?
Oren, as an aside, in my understanding a limiting concurrence occurs when it is possible to identify a common ratio in the concurrence and the plurality. In effect, in this manner, the concurrence defines (downward) the ratio, or vice-versa. I agree that where the concurring Justice joins in the reasons as opposed to the result, this can't happen.
And you can try to convince people to vacation in Amsterdam without wanting to change the law but it's pretty damned likely that if you favor the one, you favor the other.
Ditto. I'm showing my age, but a bunch of kids were thrown out of my high school graduation rehearsal for wearing "Van Halen Kicks Ass" T-shirts after the concert rolled through town.
Americans don't know how to disagree politely; so, you get measures like this that try to avoid anyone's having the occasion to disagree with one another.
I wish more students wanted to wear political T-shirts, instead of tees with celebs on them, or commemorations of homecoming celebrations past.
Alito joined in the Opinion, not just the result.
Believe me, I would be a very happy man if his opinion (and not that of our Chief Justice) controlled.
>"pretty damned likely".
Like a true progressive, using harsh language to distract from the utter invidiousness of the comparison.
It isn't illegal to "choose life", nor is encouraging someone to choose life an encouragement to do something illegal.
But Oren thinks that such people are prima facie hillbillies FACE-violators etc.
Good point, and probably why the school district has some legitimate reasons to ban this stuff. People on this supposedly "intellectual" blog can't help but delving into the "Abortion = Murder" stuff, why would you expect a typical high schooler to act civilly about this kind of thing.
Just so.
Wasn't it Bill Clinton that said, "Abortion should be legal, but rare?"
I think I made it clear that I am pro-choice (and indeed, am very glad that the young women who wear these shirts will have the right to obtain an abortion if they need one later in life) and am completely supportive of the students' rights to wear these shirts and express their pro-life views.
Really? Why don't you post the specific school you are speaking of, the teachers who were "radicals", and the particular "radical" ideas that they expressed.
Your claim strains belief otherwise.
Oh, were you talking about the teachers? Sorry, I must have missed the context--I was talking about us students.
OK. What I was assuming was you were making the claim oft-made by conservatives that schools are such hotbeds of liberal orthodoxy that conservatives are silenced while liberal ideads spew from official mouthpieces. If you aren't making that claim, then my objection has no application.
Again, I want to stress to everyone-- the point here is that telling a pro-lifer she can't express herself is a massive free speech violation. It isn't an occasion to sit around sniping about which ideological side has the bigger First Amendment martyrs.
No problem. I have no idea how common my experience was, but we were most assuredly a bunch of student-radical-wannabes back in the day. (I suppose it didn't hurt that "the day" was 1968-69, now that I think of it, nor that one of our number was actually the [much] younger brother of the Peace and Freedom Party VP candidate.)
As a general rule, I'd have a hard time believing something that's been on the cover of Life Magazine counts as "explicit" or obscene for First Amendment purposes.
Probably a stretch to call the images disruptive in and of themselves, too.
Um I thought the opposite side to the pro life side was pro choice, and part of being pro choice was advocating the choice not mandating abortion. Also, I thought those who are pro choice are all on the "let's make abortions rare" page, but this argument seems to be saying that isn't the case.
The shirt doesn't make any advocacy of banning abortions, or prohibiting choice.
The shirt has three photographs on the front-the first is an early stage fetus, the second is a later stage fetus, and the last is a black square.
Under each square are the words "growing" "growing" and "gone" under the black square.
Seems like the advocacy here is for the choice for life, and the description and photos on the shirt a pretty clear, but non gory graphic of what happens when one chooses abortion.
I am having a hard time seeing how the shirt should be banned.
Absolutely not, I would love to have pro-life t-shirts on our students. I only insist that we treat all positions and all topics (including drugs) on a level playing field.
Why is that so objectionable?
It can reasonably be interpreted as such and, as we learned in Morse, ambiguous speech gets treated with the presumption that it is prohibited. Again, if you are proposing that we overturn Morse and institute a presumption that ambiguous speech is to be interpreted charitably, I'm all ears.
[OK, for those that don't get it, I'm 100% behind this girl's shirt. I'm just angry at those that would allow abortion-related shirts (pro or con) but not, say, a t-shirt with a potleaf.]
actually, technically it is not (not in any jurisdiction i have worked. in some jurisdictions it is illegal to be under the influence of certain drugs e.g. heroin in public)
but taking drugs is not illegal.
possessing them is.
that may sound like a trite distinction, but it really isn't. in my entire career, i have never seen or heard of a prosecution for using drugs.
i've had metric ***loads of people admit to smoking crack, meth etc. right before i contacted them. nothing i can do about it (note that i am against the drug war anyways, but i am referring to the law).
generally speaking, if you are using a illegal drug, at some point you probably possessed it but not necessarily.
example.
you have johnny inject you with illegal drug X.
you never possess it or intend to possess it. you merely agree for him to inject you with it. let's say heroin.
did u break the law? not that i can see.
That is not the law in the US. No such law has ever been enacted by any competent and qualified body.
Sure you are, Oren, as demonstrated by your argument that her shirt ought to be banned as challenging womens "right" to an abortion.
The fact that there is an actual right to keep and bear arms might be a factor in the thinking of those wacky conservatives.
No such "right" exists for abortion.
And saying that marijuana in a wonderdrug that grants protection from cancer isn't either.
But the point is that in the one case the school administrators took the worst possible interpretation and ran with that (unfair) but now we balk when they take the worst possible interpretation of this shirt (also unfair) and run with it.
You are right though, it is pretty obviously trolling to ask for the absurd result in Morse (which could be used to argue against Tinker quite easily) to be applied evenhandedly because it is such an open question.
Exactly.
I love watching the "freedom" loving left wallow &wail over things like this.
Remember, keep the government out of "our bedrooms" - except the t-shirt drawer that is!
My over-the-top rhetorical device (pretending to support the school in this case to make a point that Morse is both wrong and unworkable in practice) was probably not the best choice, especially since many didn't read from the beginning.
My ox was gored in Morse (ostensibly, EV claims, under a decision that says "don't gore oxen") and so now I am in the position where, if I take the principled stand and support this girl's (fairly clear) right to wear this t-shirt, I will be supporting (de facto) a discriminatory policy in which views on abortion are privileged but not views on drugs. Perhaps its wrong to ask that her ox be gored too, as a matter of fairness (it's certainly the wrong result, taken in vacuum) but it's also wrong to treat speech differently based on our prejudice towards discussing the policy.
Although the majority did not explicitly adopt Alito's limiting concurrence, I think any lower court judge faced with applying the decision would be foolish to read it as allowing schools to punish people who argue for the legalization of drugs (except consistent with the Tinker disruptiveness test).
(*) Which I think came out the wrong way, to be sure.
I must have missed where we amended Article III and took the authority for deciding these things away from the Supreme Court and gave it to you.
Casey is good law and the right exists. You may not like it, but since you aren't in charge, that fact isn't worth the paper it is not printed on.
Joe, I'm over on the "left", pro-choice, and am defending the shirt, as I am sure the ACLU and many liberals would.
Again, can conservatives EVER look at an issue like this without whining about liberals?
Isn't it the folks that write the documents that decide these things, not the supreme court?
No, Shelby it isn't. The people who wrote those documents left little guidance as to what the documents meant and then died. They empowered one Supreme Court to make rulings on the meaning of the law, including the Constitution. That Supreme Court's rulings are not appealable.
So if Casey says there's a right, then there's a right. Too many conservatives are petulant about this, but Article III is not unambiguous about the Supreme Court's power to decide these things. There's no exception to the Supreme Court's power for "areas where the Supreme Court and movement conservatives disagree" where the opinions of movement conservatives, rather than the controlling Supreme Court precedent, controls the question of whether there is a right or not.
Actually they empowered congress to decide who gets to decide, in the vast majority of cases. It doesn't have to be the supreme court.
Something I'm curious about: Let's say the state of OK decides to procecute Jane Doe for having an abortion, under its statute that Roe struck down. The state courts would have to dismiss, under Roe and Casey. But if OK apealled to the SCOTUS, what would be the issues there, other than the horizontal stare decisis issues? If the SCOTUS felt that Roe and Casey should be overruled, does Jane have a defense that what she did was legal under Roe and Casey?
Well, they granted Congress the power to make exceptions to the Supreme Court's jurisdiction. But even if we assume such exceptions could include, say, writs brought in abortion cases (a contested assumption), it wouldn't mean that Congress could overrule Casey. Lower courts would still have to enforce it even if the matter were withdrawn from the Supreme Court's prospective jurisdiction.
In other words, Casey has the final word, until the Supreme Court decides to do something else.
Something I'm curious about: Let's say the state of OK decides to procecute Jane Doe for having an abortion, under its statute that Roe struck down. The state courts would have to dismiss, under Roe and Casey. But if OK apealled to the SCOTUS, what would be the issues there, other than the horizontal stare decisis issues? If the SCOTUS felt that Roe and Casey should be overruled, does Jane have a defense that what she did was legal under Roe and Casey?
She'd have a Due Process defense, on the ground that she did not have fair notice that the statute could be constitutional. I don't have a specific case to cite you, but I know there is actually some discussion on the federal caselaw on this in the Witkin treatise on California law that I have seen.
you miss the point. it is not illegal to "possess" illegal drugs IN YOUR BLOODSTREAM. with the exception of states that criminalize being under the influence
of heroin etc. in public. i work in WA state. there is a law against possessing meth. there is no law against possessing it IN YOUR BLOODSTREAM. trust me. also, testosterone is not an "illegal drug". it's a prescription drug. there are all sorts of drugs that are naturally present in your bloodstream that require a script and some (such as testosterone) are also controlled substances (and also require a script). hgh is another drug that is naturally present, but requires a script. insulin is a special case. it is also present in your bloodstream. certain varieties (humulin R) are over the counter. others require a script. my point is that if the guy injects you with heroin, you have not broken the law in WA state. at no point did you possess it or conspire to possess it. presence
in your bloodstream is not a crime. and there is also no such crime as "injecting an illegal drug"
It doesn't matter that he disclaimed it -- at the inception, the principal punished him for speech that could arguably be considered to be permissible but, because it could arguably be consider impermissible, the ambiguity is to be resolved in favor of the impermissible.
Let me turn it around at you -- is a t-shirt with a pot leaf (and nothing else) permissible on the grounds that it's a political statement about the legality of marijuana or an impermissible advocacy of illegal drug use? It could easily be both, but of course it will be summarily forbidden with Morse as the obvious rationale.
I'm not so sure -- our school (pre Morse) banned NORML t-shirts (on drug grounds) even though they are a political organization with the explicit rationale that their political agenda implies that drug use is normal and not to be shunned, which is contrary to their anti-drug message. A lower court judge would be foolish not to jump on Morse as a shortcut to the result that he wants.
An interesting question -- "qualified immunity" for the citizenry. I doubt it would fly, but it would make a good circus.
DMT is found in the human brain, and that's CSA-Schedule I!
Whit, you are wrong, unfortunately -- there is nothing in the section of the CSA that prohibit simple possession that exempts in-bloodstream possession from criminal sanction.
In practice, of course, everyone has psilocybin-containing mushrooms in their yard and potato farmers have illegal alkaloids in their 'taters. Just another absurdity in the war on drugs.
oren, i'm not wrong :) . i was referring to state law and you reference CSA, but if you can show me ONE CASE where somebody was charged federally merely based on possession their bloodstream under the possession statutes, i'll concede. and note i am not referring to parole violations, where presence
in your bloodstream can violate you. the offense there is parole violation, not possession. we have been told flat out in training and by the prosecutors, that there
is no crime in having illegal drugs in one's bloodstream. and the law is consistent on that in every state i have worked. i know cali, and maybe some others do criminalize it
with certain drugs such as heroin
That being said, I doubt anyone would argue that "not getting an abortion" is illegal, which appears to be what the shirt is advocating.
I'm not sure that assumption is correct. Typically courts are bound by whatever court has appealate jurisdiction over them, no? I'm not sure I'd assume that courts would still be bound by SCOTUS if their jurisdiction were removed. Do you have more information to support the assumption?
in your bloodstream can violate you.
Whit, not only are you correct, but the US Supreme Court has specifically held that criminalizing addiction to drugs, as opposed to their possession, is unconstitutional.
There can certainly be arrests for things like public intoxication and the like, but if the police, say, execute a search warrant on someone's home and that person has, shall we say, smoked all the evidence, there's no basis for a possession charge (unless the police can produce witnesses to testify that they saw the suspect possess the marijuana).
We don't have any specific knowledge of what the courts would do because it has never been tried. But generally, once a decision is entered, it keeps its precedential effect even if jurisdiction is later lost (the case for this is a US Supreme Court case called US Bancorp and it's from about 15 years ago-- the parties tried to stipulate to vacate a precedential Court of Appeals opinion and that attempt was rejected).
So, Congress' stripping Supreme Court jurisdiction would leave Roe and Casey in place. Now, if some lower court chose not to follow them, what IS true is that the Supreme Court couldn't stop that. But as a matter of what they are supposed to be doing, those Supreme Court decisions are still the Supreme Law of the Land and binding on state and federal courts throughout the land.
By the way, Judge Bork has pointed this problem out and it is one of the reasons why he opposes jurisdiction stripping even though he can't stand Roe and Casey. Jurisdiction stripping works best with categories of cases; it doesn't work very well to control the RESULTS of specific cases.
Jurisdiction stripping doesn't change the underlying law. It just says you can't go to Court X to enforce it. The only procedures for actually OVERTURNS Roe or Casey are (1) a new Supreme Court opinion that overturns them, or (2) a constitutional amendment.
The student was wearing a pro-choice t-shirt, her choice just happened to be Life. :)
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