comments at National Review Online on Morse v. Frederick (paragraph break added):
The Court basically holds that schools can restrict speech about drugs because drugs are really harmful and really illegal.
All of this is no doubt true, but here's the rub: Virtually all restrictive speech policies (including over-broad anti-harassment rules or anti-bullying policies that are often used to shut down religious speech on political or sexual issues) are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations. All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics.
Advocating illegal activity? Administrators justify censoring tee-shirts or other forms of speech by reference to state anti-discrimination statutes, anti-bullying regulations, and hate crimes laws all the time. What about impairing the cognitive or psychological development of young people? If you don't think schools can't trot out literally hundreds of psychiatrists who would argue that moral disapproval impairs the development of young people engaged in various forms of sexual activity, then I have a particularly nice bridge I'd like to sell you. It's big and spans the East River.
At its base, this opinion dramatically expands the scope of state authority over the speech of school children. Tie the speech in question to any form of "advocacy of illegal behavior," and the student will face long odds, even if his or her speech was non-disruptive, not school-sponsored, and not profane.
If the speech contradicts a message that state or federal officials require schools to advance, then the odds grow even longer. If the school caps it off by trotting out some mental health care specialists who talk about the "profound harm" to delicate young minds or the risk of violence caused by the dissenting speech, then you might as well start drafting your appeal.
And what does this all have to do with universities, you ask? In every single free speech case I've ever argued, the university's first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder. In fact, I would be surprised if the "Bong Hits" case is not raised in at least two pending Alliance Defense Fund university speech cases. We shall see if the courts will continue to distinguish between secondary school and universities -- especially in the face of serious institutional pressure to blur the differences.
I'm not sure how much of a risk there is of slippage from K-12 student speech to university student speech; courts have generally drawn a pretty firm line between the two. But I wouldn't say there's no risk, especially given that parts of Justice Thomas's concurring opinion (on which I hope to have more in the coming days) would support giving public university administrators a free hand just as Justice Thomas would support giving K-12 school administrators a free hand. Justice Thomas is just one vote, and I expect that there would in any event be at least five votes for upholding university speech codes and the like -- but I can't say that I'm entirely positive.
I do think, as I've suggested in an earlier post that there is a good deal of risk of slippage from pro-drug speech to other kinds of speech by K-12 students.
Related Posts (on one page):
- Stanley Fish Agrees with Justice Thomas on Student Speech:
- What Justice Thomas's Morse Concurrence May Mean for University Speech Codes:
- David French, Formerly of the Foundation for Individual Rights in Education (FIRE), and now with the Alliance Defense Fund,
- Thoughts About Orin's Thoughts on Morse v. Frederick:
- Student Speech After Morse v. Frederick:
- The Morse v. Frederick Dissent:
- What Did Morse v. Frederick Do to the Free Speech Rights of Students Enrolled in K-12 Schools?
- "Bong Hits 4 Jesus" Case: