Bong Hits and Ad Runs

"Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," the majority said. In contrast with, say, a general rule against banners at school events, this topic-specific, viewpoint-based ban encourages suppression of dissenting opinions.

While students in school do not have the same First Amendment rights as adults, the Supreme Court has emphasized that they do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." That's why two of the justices who ruled against Frederick said in a concurring opinion that the Court's new rationale for censorship should apply only to pro-drug speech, as opposed to political or social commentary.

But this distinction may be hard to maintain in practice. Imagine a student who attacks the war on drugs by arguing that there's nothing inherently wrong with smoking pot, or by sharing accurate information about the relative hazards of marijuana and alcohol, or by noting New York City Mayor Michael Bloomberg's un-Clintonian response to the question of whether he'd ever smoked cannabis: "You bet I did, and I enjoyed it."

In each example, the student, though engaged in political debate, "can reasonably be regarded as encouraging illegal drug use." Will his speech be protected anyway? Like the activist with an issue ad, he can't be sure.