The Supreme Court has once again cut away at student speech rights. In its recent decision Morse v. Frederick, the Court held that a high school did not violate the First Amendment when it suspended a student for displaying a 14-foot banner proclaiming "Bong Hits for Jesus" during an Olympic torch parade.
In Morse, the Court declares that public schools can censor speech relating to activities "illegal to minors." In addition, and perhaps most importantly, the Court holds it is appropriate to defer to school administrators' "reasonable" interpretations of what the speech at issue means. Chief Justice Roberts, joined by four other justices, concludes that although the banner's message was offensive to some and merely cryptic or amusing to others, it was reasonable for the principal to conclude that the statement "bong hits for Jesus" promoted illegal drug use.
Although school administrators are no doubt delighted that the Court has now given them the green light to restrict speech involving drugs, they should be more elated that the Court has mandated deference to their interpretation of meaning and effect of student expression generally. Before this decision, only prison wardens were granted this sort of deference. See Beard v. Banks, 126 S. Ct. 2572 (2006) (upholding prison regulation restricting access to books and magazines); Turner v. Safley, 482 U.S. 78 (1987) (upholding ban on inmate-to-inmate correspondence).
Justice Alito authored a concurring opinion joined by Justice Kennedy emphasizing that the majority's holding was a narrow one that would not permit schools to suppress speech on political and social issues. Alito's concurrence is not surprising in light of his opinion striking down a school anti-harassment policy while he was an appellate judge. (The challengers to that law wanted to be able to express their view that "homosexuality is a sin.") Given that Justices Alito and Kennedy also signed on to the Chief's five-vote majority opinion, their interpretation of the scope of that opinion will be controlling.
In the most curious opinion of the day, Justice Thomas, who also signed on to the majority opinion, argued in a concurrence that "the better approach" to resolving the scope of student speech rights is to reverse the Court's precedent and hold that students have no free speech rights at all. In his concurrence, he relied almost exclusively on cases from the nineteenth century -- long before the First Amendment was held applicable to the States -- and waxed sentimental about the good old days when "teachers managed classrooms with an iron hand." Justice Thomas argued that because student speech rights were not recognized when the Fourteenth Amendment was ratified, they should not be recognized now. (In a footnote, Thomas suggested that college students also should have no First Amendment rights because historically the university was structured on strict hierarchical authority.)
Under Thomas's shockingly strict originalist view, most of the Court's contemporary First Amendment jurisprudence could not stand. After all, shortly after the ratification of the Bill of Rights, the Federalists passed the Sedition Act of 1789 and used it to throw political dissenters in jail. Fortunately Justice Thomas could not convince anyone else to join his opinion.
The implications of Morse for online student speech could be quite profound, albeit difficult to predict. The Court gave short-shift to the argument that this was not a student-speech case at all. Although the student had argued that his speech was entitled to full First Amendment protection because he had unfurled his banner on a public sidewalk during a parade, the Court accepted the school's argument that the student's attendance at the parade on the sidewalk near the school was part of a "school-sanctioned activity." The Court briefly noted that although "[t]here is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents," the Court concluded that this was not one of those cases.
Given all the confusion surrounding the scope of student speech rights, it is disappointing that the Court granted certiorari in a case with such bizarre and unusual facts. Although Justice Thomas's opinion was almost as wacky as the speech at issue in the case, it did make one persuasive point -- that under the Court's jurisprudence in this area, "students have a right to speak in schools except when they don't."
