Did Student-Speech Rights Go Up In Smoke?

david-l-hudson-jrBy David L. Hudson Jr.
First Amendment scholar

With a stroke of the powerful pen of Chief Justice John G. Roberts Jr., the U.S. Supreme Court limited student-speech rights this week, creating another exception to Tinker v. Des Moines Independent Community School District, its landmark 1969 First Amendment decision in which it declared that students do not “shed their constitutional rights to freedom of expression at the schoolhouse gate.”

As a result of a colorful case colloquially known as “Bong Hits 4 Jesus,” the Court ruled June 25 that students just outside the schoolhouse gate lose their First Amendment rights if they speak even ambiguously about drugs. Though many associate the “war on drugs” with a loss of Fourth Amendment freedoms, the First Amendment also fell victim in the Court’s decision in Morse v. Frederick.

The question becomes whether the Court’s recent decision will curtail student-speech rights dramatically or will represent only a narrow “drug exception” to Tinker.

The case involved the expressive activities of then-18-year-old Joseph Frederick, who defiantly unfurled his 14-foot banner with the words “Bong Hits 4 Jesus.” The Alaskan, who now lives in China, claimed he was not advocating for drugs or for religion but merely testing the limits of his free-speech rights. He contended that his school principal, Deborah Morse, doubled his suspension from five days to 10 after he quoted Thomas Jefferson: “Speech limited is speech lost.”

Whatever the teen’s intent, Chief Justice Roberts divined that a reasonable observer would support Morse’s interpretation that the strange message advocated drug use or at least contravened the basic mission of the school’s anti-drug policies.

Roberts’ opinion certainly limits Tinker, allowing “schools to restrict student expression that they reasonably regard as promoting illegal drug use.” However, Roberts’ opinion was not a complete disaster for at least three reasons.

First, Roberts rejected the school officials’ specious argument that the analysis was controlled by the Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court created a huge exception to Tinker for school-sponsored speech. Under Kuhlmeier, school officials can restrict school-sponsored student speech — such as some school newspapers and school plays — if they have a rationale reasonably related to a legitimate educational purpose (which forms a broad category). Roberts wrote: “Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur.” An expansion of the Kuhlmeier decision would have been a tragic loss for student-speech rights.

Second, and even more important, Roberts rejected an argument by Ken Starr (who represented the school officials before Supreme Court pro bono) that Frederick’s speech could be punished because it was “plainly offensive” within the meaning of the Court’s 1986 decision in Bethel School District v. Fraser. In Fraser, the Court ruled that public school officials could punish vulgar and lewd student speech, such as profanity. Language in the Fraser opinion also referred to “plainly offensive” speech. Some lower courts have interpreted the “plainly offensive” rationale quite broadly, restricting a broad range of controversial political expression. Roberts warned against extending the “plainly offensive” wand of censorship, writing: “We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.”

Roberts must have paid close attention to numerous amicus briefs in the case from a broad range of liberal and conservative groups who feared the Court could place any controversial student speech — on subjects ranging from abortion to gay rights to religion — at grave risk.

Finally, some may draw a measure of reassurance that Roberts gained a majority only with the votes of Justices Samuel Alito and Anthony Kennedy. Alito wrote a narrow concurrence, joined by Kennedy, that emphasized the Court’s ruling “goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and … it provides no support for any restriction of student speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

Many First Amendment advocates will applaud the dissent of the independent-minded John Paul Stevens, who accused the majority of “inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.” Stevens lamented the majority’s approval of blatant viewpoint discrimination.

First Amendment boosters also will undoubtedly hope that the Court and lower courts will blow “Bong Hits 4 Jesus” into a very narrow exception, lest it inhale the First Amendment rights of young people.

David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.