David French, Formerly of the Foundation for Individual Rights in Education (FIRE), and now with the Alliance Defense Fund,

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.

Randy R. (mail):
Well, a lot of digital ink has been spilled over this case. I think it's time to step back and really review the situation.

First, what was the principal so afraid of? Was there in fact any sort of disruption of the educational process? Was he really afraid that a student might see the sign and go from thinking pot smoking was bad, to thinking pot smoking is good and actually light up a joint as a result? Was he really worried that it might start an uprising to overturn marijuana laws?

Of course, there simply was no real harm to anyone that I can see. At best, there is an amorphose harm that the principal's ability to control students and what they say is eroded. But again, what is the harm in that? In short, this was a bogus issue to begin with. And SCOTUS should never have been involved.

Control. That's the bottom line here. It's all about schools having the ability to control students on certain topics. Which topics will vary from district to district, from principal to principal. Some will allow more leeway, others will be tighter. Some will allow speech regarding gays, others will not. But what the court did do was allow schools to control the actions of students, and they are assuming that if you can control a student's actions, you are thereby controlling what they think.

So Alito &Co and really saying that if you prohibit a banner which says Bong Hits 4 Jesus, then you will stop students from thinking pot smoking is good. And so they approve of this control mechanism.

Students, however, are not really that stupid. Neither are we. I've always maintained that the answer to bad speech is more speech -- if pot smoking is bad, let's hear about it, but let's also hear about how it can be good, or at least harmless. We can't expect our students to have less an education than we afford ourselves. We can police their actions, and make smoking it illegal, but we cannot police their thoughts on the matter, nor should we.

The end result of this decision is that kids who find pot harmless or a good thing will continue to smoke pot, which is the exact opposite of what the Court was hoping its ruling would accomplish. Students will continue to 'question authority' even when they are told not to, or discouraged from actually doing so. Any principal foolish enough to exercise his new rights under this ruling will only alienate the students under his command, and make them cynical towards authority.

And I say, good for them.
6.27.2007 1:26am
Cornellian (mail):
If I were a high school student I would now put up a sign saying "vote for candidates who support bong hits for Jesus."
6.27.2007 2:54am
M. Stack (mail):
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.

But Professor Volokh also has written in "Same Sex Marriage and Slippery Slopes" that slippage, as in slippery slopes, are a fallacy because they aren't real.

So, we cannot say that this ruling threatens university speech, or other public elementary school speech for that matter, as would be the case in a "slippery slope" argument.

This decision narrowly upholds the reasonable discretion of a high school principal seeking to promote a drug-free school.

For those of you who do not agree with the majority, you really need to step back and look at this objectively. The banner "BONG HiTS 4 JESUS" is not political speech. According to the student who unfurled it, it was merely "gibberish." So why is there all the fuss about protecting speech that the speaker admits was simply "gibberish," which not to mention could reasonably be inferred to smoke pot, which is currently illegal?
6.27.2007 6:13am
As I tried to point out in our prior discussions, what this decision does on a fundamental level is sever the tie between the state officials' authority to regulate childhood speech and the fact that the speech in question occurred in a school context (and here it was a stretch to call it a school context anyway). In other words, once you dump Tinker-style disruption limitations and just start talking about how drugs are bad, m'kay?, it is no longer clear why the rationale for the regulation depends on the speech occurring at school. For that matter, the rationale really did not have much to do with children. The determinative element was basically that the speech happened to celebrate drugs, and this is something the Justices could not stomach no matter what their First Amendment doctrines would otherwise suggest.

So, I do believe that if this case was taken seriously, it would erode the K-12/university distinction, and indeed the school/non-school distinction. In other words, if taken seriously the reasoning in this case would push us toward the view that the government can generally regulate speech celebrating drugs (because drugs are bad, m'kay?, and people who do drugs are bad, m'kay?, so people who talk about doing drugs are bad, m'kay?).

Hopefully it will not be taken that seriously, but who knows? As we are also discussing elsewhere, this Court seems to have a general agenda of systematically removing itself from the business of preventing government officials from violating constitutional rights.
6.27.2007 8:12am
Eugene Volokh (www):
M. Stack: Well, as it happens we have Marshall McLuhan right here in line with us. And I can confidently say that my work on slippery slopes, both as to same-sex marriage and as to other topics, argues that slippery slopes are indeed sometimes quite real, though sometimes not. In particular, as I argue in both articles, judicial-judicial slippery slopes do often exist, because of the way precedent operates in our legal system.
6.27.2007 8:56am
vepxistqaosani (mail) (www):
Randy R. is correct -- it's about control. But schools need to be able to control their students.

I was quite a troublemaker myself in high school. So much so that the the principal wouldn't let me run for student body president -- "You might win," he said, "and I am not at all sure you'd do what you're told." He had a point ....

My most notorious prank was to plaster the school with posters lampooning 'Black Awareness Week' -- I figured I was already aware of Blacks: they were the ones with the darker skin. Anyway, I advertised 'Short Awareness Week' and the 'National Association for the Elevation of Short People.' (I was quite short at the time and tired of being overlooked, especially by girls.)

So I have experience with disapproved speech in high school.

Now, I thought then -- and still think now, thirty-some years later -- that most high-school teachers and all high-school administrators lack common sense, intelligence, and knowledge. It is also true, however, that high-school students have none of those attributes and boys (especially) require significant discipline if they are ever to acquire any of them.

When every dispute, no matter how silly, between a student and an administrator can be taken all the way to the Supreme Court, then there is precious little hope that there will ever be any discipline -- or any learning -- in the public schools. And, in fact, there is not, which is why my own children are homeschooled.
6.27.2007 10:18am
"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. "

ahh. the slippery slope. while i love FIRE, i disagree with this.

high schools are not colleges. high school: admins act in loco parentis. colleges: they don't.

i believe (and FIRE has been successful in many cases on this) that many university speech codes are blatantly unconstitutional and that allowing all sorts of offensive, disturbing, racially insensitive etc. speech on (public certainly) college campuses is required by the first amendment.

but college is not high school.

i would love to see the drug war overturned. i would love to see thousands of high school students protesting drug laws. but they can do it OFF CAMPUS
6.27.2007 11:26am
William Spieler (mail) (www):
I'd take issue with the use of Thomas's concurrence in public universities, if only because I think the history there is quite different.
6.27.2007 11:52am
Why can't a principal just say students can't spring surprise 14-foot banners at school events no matter whether they say "Bong Hitz 4 Jesus," "Fuck the Draft," or "God Bless America"? I suspect that in actual practice principals won't be strictly content-neutral, but a doctrine people can understand with some inevitable (and probably winked-at) slippage is better than this incoherent mess.
6.27.2007 1:34pm
I am curious how Justice Thomas's concurring opinion could be realistically used as a rationale for restricting university speech. Despite Justice Thomas's hints that the reasoning could apply to universities, footnote 3 seems to imply that his legal reasoning applies only to elementary and secondary education. The footnote's purpose was to moot the issue of Frederick's age, but it could also be read to indicate a limit to the K-12 setting.

Of course, if the question is framed as "Does Justice Thomas's concurrence completely and totally prevent application to the university setting?" -- then you've potentially got some room to play with. I look forward to reading what you will be saying on the concurrence.
6.27.2007 1:42pm
a postscript -- by "moot" I meant both "to discuss" and "to render irrelevant." Neither usage is particularly pretty, but that's for a different thread.
6.27.2007 1:50pm
M. Stack (mail):
Prof Volokh: I didn't mean to try and contradict your past writings with the present.

It' just that slippery slopes, although unfortunately real like you state, should not be the main reason to base a position.

In the present case of Bong Hits 4 Jesus, some opponents of the decision attempt to say that this will lead to further speech restrictions; i.e., that darn slippery slope.

But I think that the proper way to look at this issue is narrowly, as both Roberts and Alito have expressed, that this restriction is against the promotion of speech reasonably interpretated to advocate illegal drug use, and nothing more.
6.27.2007 5:01pm
Dilan Esper (mail) (www):
I agree with French that it is very troublesome if the Court is saying that all a school has to do is find some plausible way of claiming that the speech advocates illegal activity and it can be suppressed. (I am not sure, given the Alito concurrence, that it is really that broad, but I agree that French and other conservatives have valid reasons to be concerned.)

Nonetheless, French is being INCREDIBLY euphamistic about the homophobic speech he wishes to protect. Is he simply seeking to protect a student's expressing the viewpoint that the student's religion condemns sexual intercourse between persons of the same gender as a sin? Or is he seeking to protect a student's right to use homophobic insults, or a student's right to target gay students for specific harassment (to try and get them to "convert" to heterosexuality)? And why, by the way, is this the ONLY type of speech that French seems to be concerned with? It seems to me the Court's decision could threaten a heck of a lot of other student speech, such as speech that references alcoholic beverages, tobacco, resisting a military draft, refusing to cooperate with the police, etc. Yet the only thing he seems to be concerned about is that some homophobic students won't get to say how horrible gay and lesbian students are.

I am certainly concerned that any Christian student may be prohibited from expressing sincerely held religious beliefs-- including sincerely held beliefs, respectfully and nondisruptively expressed, about the alleged sinfulness of people who choose to sleep with and make their lives together with those they love and are attracted to rather than denying who they are and sleeping with someone whom they are not attracted to or depriving themselves of the pleasures of sexual activity because they are not attracted to the "right" gender.

But I must say, the concern about this-- even if this is all that the concern is, and not some broader concern about the alleged right of "Christian" students to ostracize and insult gays and lesbians-- is really outsized compared to the benefit of this speech.

We should protect hate speech, yes, but we shouldn't forget that it is, in fact, hate speech. French seems to think that there is something to celebrate about alleged Christians who are intolerant of their fellow human beings, and who feel no compunction about casting the first stone. I don't. And I don't trust people who don't make clear that they are holding their nose when they advocate protections for homophobes.
6.27.2007 8:16pm
Chet Lemon (mail):

Fancy meeting you here.

French does not "only" mention speech in opposition to the uncritical promotion of homosexual behavior. You might want to re-read his comments.

Also, I'd like to point out that you have made a series of accusations without researching. Go to the Center for Academic Freedom website and look at some of the cases French is litigating/has litigated. Not ONE of them is in defense of students who want a "right to use homophobic insults, target gay students for specific harassment." Many deal with speech codes which specifically "protect" homosexuals, so you have it backward. These codes are used to stifle ANY opposition to the agenda advocated by Leftists, including Leftist homosexuals.

Sounds like I might be the first one to break it to you -- people can object to the promotion of certain sexual behavior(s) without "hate." The problem with your side of the debate is that you don't accept even legitimate opposition. Instead you demonize those whose actions do not match your demonization because it's easier to do that than to have an honest debate. What's worse in this case, you throw these accusations at unknown clients of French from cases you've not researched!

For those of you who insist that it is unlikely that speech restrictions placed specifically on K-12 would be applied to universities, I think I'll defer to the person involved in this exchange who has the most experience litigating the cases. David French:

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.
6.27.2007 8:58pm
Dilan Esper (mail) (www):

1. What do the "speech codes" provide? Do they simply prohibit harassment (i.e., creating a severe and pervasive disruption of the educational environment) of gays and lesbians? If so, what's wrong with that?

If the speech codes prohibit conservative Christians from saying the Bible prohibits same-sex relations, I agree, that is protected speech and the codes should be struck down. But that's a lot different from targeting suspected, or actually, gay and lesbian students for abuse.

2. I may agree in theory that people can believe that same-sex relations are sinful without hating gays and lesbians, but I don't agree that this happens much in practice. For one thing, there's something called common courtesy. I may object to many practices of my fellow human beings, but I don't say things to their face that may be seen by them as personally insulting.

Further, most expression by conservative Christians that I have heard about gays and lesbians does not follow the "love the sinner, hate the sin" script. Rather, it is filled with talk of "sodomites", "the homosexual agenda", comparisons to pedophiles and sexual deviants, etc. Some even use epithets against gays and lesbians (such as the one used by Ann Coulter and a variant of which is also used in the slogan "God hates ___s").

Plus, most conservative Christians who talk a lot about homosexuality don't just want to condemn the activity; they want to use government power and private sanction to force gays and lesbians to either stay in the closet or become straight. They favor employment and housing discrimination. They oppose gay marriage and ANY benefits to same-sex couples even short of marriage. They oppose gays in the military. And, before Lawrence v. Texas, they supported sodomy laws that would imprison gays and lesbians for years, and they still support the overturn of Lawrence so that such laws can be reinstated.

In practice, in other words, I think the alleged Christians who engage in this expression are deeply homophobic.

If a conservative Christian supports legal protections for gays and lesbians and doesn't take the rhetoric any farther than saying that the conduct is sinful, I don't have any objection to that person's discourse. But using the legal system to try and force gays and lesbians to conform to your version of sexual morality, and hurling epithets, is homophobia, pure and simple.

3. I really have a problem with conservatives using the term "leftist" and "left wing". Noam Chomsky is a leftist. Karl Marx was a leftist. Ordinary Democrats are liberals, not leftists. Or do you like it when liberals call conservatives "fascists"?
6.27.2007 11:58pm