Chief Justice John Roberts, joined by Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, noted that in 1986 the court, in a case arising from ``lewd and indecent'' student speech, did not conduct a ``substantial disruption'' analysis. Instead, that court held that, ``in light of the special characteristics of the school environment,'' the rights of students ``are not automatically coextensive with the rights of adults in other settings.'' And in another case, the court has recognized an ``important -- indeed, perhaps compelling'' public interest in deterring drug use by children.
In concurring opinions, Thomas and Alito took strikingly different positions. Thomas said that nothing in the history of public education or the original understanding of the First Amendment suggests that students have any justifiable First Amendment rights. To confer constitutional protection on Frederick's ``impertinence'' would, Thomas said, be ``farcical.''
Alito, joined by Kennedy, stressed that in ruling against Frederick the court was condoning only restriction of speech advocating illegal drug use, and that the ruling ``provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.'' Alito seemed to share Thomas' view that Frederick's banner was less advocacy than ``impertinence.''
Stevens, dissenting and joined by David Souter and Ruth Bader Ginsburg, argued, plausibly, that Frederick's ``nonsense banner'' with its ``oblique reference to drugs'' hardly constituted ``promoting'' drug use, or advocacy with likely and ``feared'' consequences. One wonders: How does Stevens square this admirable First Amendment fastidiousness with his tolerance of McCain-Feingold's gross restrictions on the sort of speech that amendment's authors most valued -- political advocacy?
Stevens, who in 32 years on the court has seen enough to know that one has never seen everything, mischievously wondered whether the majority justices would have allowed Frederick's punishment if his offense had been a banner reading ``Wine Sips 4 Jesus,'' which could be read as advocating alcohol use but also as -- communion wine? -- ``a protected religious message.''
Somewhere, a teenager with an abnormal interest in the court and a normal zest for mischief might be thinking: Cool idea, Justice Stevens -- I'll create a banner to test whether banning ``Wine Sips 4 Jesus'' would infringe my religious freedom. Endless distinctions can -- actually, must -- be drawn once a subject becomes a matter of constitutional litigation.
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