Tuesday, June 26, 2007

Student Free Speech Decision: Yields a Confusing Test

Yesterday, the Court handed down its opinion in one of two blockbuster cases remaining to be decided:
Morse v. Frederick. The case decides whether an Alaska school can limit student free speech regarding illegal drugs. The student, Joseph Frederick ,was suspended after displaying a sign reading "Bong Hits 4 Jesus" and he subsequently sued the school for violating his First Amendment rights.

The decision seems to chip away at a clear and applicable test for restricting First Amendment protections of freedom of speech. Precedent has usually cited safety as a primary concern for restricting freedom of speech and the Court's decision in Morse expands the definition of safety slightly too much.

CJ Roberts writes the opinion for a highly fractured majority: Scalia joins with Roberts, Alito and Kennedy write concurring opinions, and Breyer joins in the outcome of the case, but for a different reason than the other four justices. A common thread among all five justices, however, is that the school should win. Save Justice Breyer, the Court found that the student banner which was displayed at a parade reading "Bong Hits 4 Jesus" was speech that "materially and substantially disrupted the work and discipline of the school." How? By encouraging illegal drug use which has become an enormous problem among adolescents. Therefore restricting this speech will lower peer pressure to use illegal drugs such as the one in this case, marijuana.

The connection between the banner and increased drug usage is tenuous at best. The Court provides no evidence showing that the school experienced or would experienced increased numbers of students using drugs after being exposed to the sign. Moreover, the strongest stimulus of peer pressure, which would cause students to use illegal drugs, is not removed by the sign and subsequent speech being banned by the school. The ban shows disapproval, but would adolescent teens ever really listen to an adult's simple disapproval?

Stevens in his dissent gets it right. He writes:

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25—a viewpoint, incidentally, that Frederick has disavowed, see id., at 28. Unlike our recent decision in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 551 U. S. (2007) (slip op., at 3), see also ante, at 3 (ALITO, J., concurring), the Court’s holding in this case strikes at "the heart of the First Amendment" because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S. 397, 414 (1989).

In addition, he cites Tinker again, placing emphasis upon the fact that "Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." CJ Roberts draws too many lines and has to make too many assumptions in showing the connection between Frederick's sign and an increase in student drug use. There is no "significant fear of disruption." At least none in the opinion was shown or advocated by the school itself.

One other danger of "viewpoint discrimination," as Justice Stevens calls it, would be that moral judgments either on the morality of gay marriage, stem cell research, or abortion would become at least conceivably regulated under the school's policy of anything that "materially or substantially would disrupt the work or discipline of the school." Resolving teenage pregnancy through abortion may very well be an increasing problem for America, but does the school have a right to limit speech which may advocate for a pro-choice position? The test the Court lays out in Morse would appear to affirm a school's decision to limit that kind of speech.

Justice Breyer also points out an interesting situation:

If, for example, Frederick’s banner had read"LEGALIZE BONG HiTS," he might be thought to receive protection from the majority’s rule, which goes to speech "encouraging illegal drug use." Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.

Legal principles must treat like instances alike. Those principles do not permit treating "drug use" separately without a satisfying explanation of why drug use is sui generis. To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (holding students cannot be compelled to recite the Pledge of Allegiance during World War II).

Indeed, the Court does not consider the chilling effects that their decision creates on possibly educative speech which will broaden student's horizons and force them to make educated and informed choices (whether on the use of illegal drugs or support for an unpopular war)--something which would substantially aid the work and discipline of the school, rather than disrupt.

The Court authors a problematic decision in Morse. It will likely see this case revisited once more so that they can fashion a more coherent approach to free speech in schools.

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