In its 1969 Tinker decision, the U.S. Supreme Court ruled that an Iowa public school could not expel students who wore black armbands to protest the Vietnam War because students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." On Monday, the Supreme Court issued a muddled ruling -- with four justices agreeing, one partially agreeing and three dissenting -- that restricts those free-speech rights, even outside the schoolhouse gate.
The story begins in January 2002. An Alaska high school student attending a Winter Olympics Torch Relay on a Juneau sidewalk unfurled a banner that read, "Bong Hits 4 Jesus." Joseph Frederick hoped that prank would land him on TV news.
Because the school had sanctioned the event and school staff supervised the event, Juneau-Douglas High School Principal Deborah Morse saw fit to confiscate the banner and suspend Frederick.
Frederick sued. A lower court ruled in Morse's favor. The Ninth U.S. Circuit Court of Appeals ruled in Frederick's favor. On Monday, the Supreme Court issued a ruling in the school's favor. As Chief Justice John Roberts wrote, when Morse saw the banner, it was "reasonable" for her "to conclude that the banner promoted illegal drug use -- in violation of school policy -- and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."
So the court ruled that public schools have a right to censor opposition to the war on drugs, even as it has upheld the right of students to oppose military wars. Eric Sterling, a board member of Students for Sensible Drug Policy, described the decision in the nutshell: "They're saying there's free speech in the schools, but you can't advocate drug use."
I understand why the big bench would want to side with Morse -- although it's news to me that unfurling a banner on a public sidewalk is a principal's business, even if the school did sanction student attendance. Morse was trying to do her job -- even if she was heavy-handed. Frederick comes across as a disrespectful cut-up, who lacked the spine to admit the banner was a pro-marijuana message.
But Supreme Court rulings are not supposed to be adjudicated like a popularity contest. Roberts wrote a pragmatic results-oriented decision likely to please many parents. But to rule that schools can suppress ideas officials don't like -- well, who knows where that will end?
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.