As Justice Stephen Breyer suggested in a concurring and dissenting opinion, the Morse decision "could in fact authorize further viewpoint-based restrictions." A principal might argue that the pro-bong banner hurts the school's educational mission, Breyer noted, but what if a student suggests that a glaucoma sufferer could relieve pain by smoking marijuana? That's not clear.
It would be more consistent, Justice Clarence Thomas wrote in a concurring opinion, to stipulate that "the Constitution does not afford students a right to free speech in public schools."
Thomas cited Justice Hugo Black's dissent on the 1969 Tinker armband decision: "Taxpayers send children to school on the premise that at their age they need to learn, not teach." (Frederick should contemplate that sentence.)
"I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't," Thomas wrote.
From the opposite spectrum, Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsberg, made the same point: "The Court's test invites stark viewpoint discrimination."
But also, "Carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment."
I especially appreciated that Stevens punctured Roberts' apparent belief that Frederick's prank, left unanswered, might lead to dangerous behavior. For Juneau-Douglas High School to argue that Frederick's banner undermined its education mission, Stevens wrote, the school must show "that Frederick's supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana."
And: "The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible."
In the war on drugs, common sense is the first casualty.
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