What a Day at the Court: On Morse v. Frederick

The Supreme Court announced some rather important decisions today, three of which I vehemently disagree with. I will post at length about all three within the coming days, but first, I will deal with Morse v. Frederick, AKA the "BONG HiTS 4 JESUS" case.

A bit of background: During a school-sponsored event in which the Olypmic torch would pass by the high school, Morse and his cohorts unveiled a large banner that read "BONG HiTS 4 JESUS." Principal Frederick ordered the students to get rid of the banner; Morse refused; Frederick confiscated the banner and suspended Morse.

To the ruling: The ruling was 6-3, although given that Justice Stephen Breyer joined the majority's ruling, but completely and utterly disagreed with their (rather unfounded) logic, it is more rational to call it 5-4, or perhaps 5-3-1 (one with no opinion, that is). I'll explain more about that later on. First, though, the majority ruled that Frederick acted constitutionally and that she did not take away Morse's First Amendment right to free speech.

It has been well established that one's rights in school are not equal to one's right out of school. Given the unique school setting, administrators need to have the power to restrict certain kinds of speech, particularly speech that either works to impede the school from properly doing its job or causes a disruption. Using this logic (which I think, on its own, is completely legitimate), the five conservative Justices (Chief Justice John Roberts and Justices Scalia, Kennedy, Thomas, and Alito) make the strained argument that the banner worked against the school's goal of promoting an anti-drug message by promoting "bong hits." Given that the only "reasonable" interpretation of the banner is to either promote or celebrate marijuana use, the principal acted reasonably, given her duty to "safeguard those entrusted to [her] care from speech that can reasonably be regarded as encouraging illegal drug use."

Yes, what would these little high schoolers do if wonderful Principal Morse hadn't confiscated that banner? They'd all probably go out and become stoners and hookers and bums and terrorists.

This may have been a disruption in the sense that students (and news reporters covering the event, who Morse was actually trying to incite) said "Hey, what's that!?" but it was not a large enough disruption from the school's message to legitimize suspension. Justice Souter noted during oral argument:

It's political speech, it seems to me. I don't see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school.

Indeed, it was a political statement, perhaps of the lowest kind, but political nonetheless. It wasn't saying "Hey students, smoke marijuana!" It was saying "Look at me! I have the freedom of speech!" The kid was, to put it bluntly, an attention whore. Obnoxious? Yeah, probably, but I think it is a stretch to suggest that he was actually promoting drug use. He was promoting himself; he wanted to be on TV, for Christ's sake!

And as Justice Stevens so eloquently notes in his dissent, this suspension actually worked against the school's broader goal of creating bright, intellectually astute students.

Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views.

Indeed, "Shut up!" "Why?" "Because I said so!" is no way to create good students.

Back to Breyer for a bit of explanation. Breyer agreed with the ruling on a more technical grounds: Morse shouldn't be able to collect damages from Frederick. He argued, however, that the Court should have decided the case on that limited basis and not even touched the First Amendment issue. He points out that this ruling manages to muddy up the waters of school speech even more than they were before. Indeed, it raises a set of new questions. If schools can ban speech that promotes illegal drug use, can a group of students discussing medicinal marijuana be punished? What about if they're having a debate about the legalization of marijuana? Can the "pro" side be reasonably accused of promoting illegal drug use? These are all questions Breyer asks, so it seems pretty clear that he doesn't buy into the majority's logic, and thus including him in the majority count seems odd.

Boy oh boy, what is our world coming to when stupid high schoolers have to think twice before being stupid high schoolers? Actually, that sounds kind of nice, but that isn't the point. The First Amendment isn't supposed to make us more comfortable; it's supposed to allow controversial speech. Indeed, it exists so that the argument "this speech makes us uncomfortable" cannot be used. Of course, this sort of nonsensical "speech" may not have been what the framers had in mind when the First Amendment was drafted, but it seems clear to me that they would approve of the spirit behind that speech.

Tomorrow: My take on Hein v. Freedom from Religion Foundation.

Wednesday: My take on National Association of Homebuilders v. Defenders of Wildlife.