"Bong Hits 4 Jesus" Case: The Supreme Court handed down 5 new cases today as the Term is coming soon to its end; among today's decisions was Morse v. Frederick, a.k.a. the "Bong Hits 4 Jesus" case.

   Chief Justice Roberts wrote the 5-Justice majority opinion, which held that schools can punish student speech reasonably believed to promote illegal drug use (which in the majority's view the "Bong Hits 4 Jesus" banner did).

  There were a slew of concurrences in the case, suggesting that the Court was much more splintered than the majority opinion indicates. Justice Alito concurred, joined by Kennedy, stating that he joined the majority opinion on the understanding that the holding was really very very narrow. According to Alito, the case is really just about speech that promotes illegal drug use in schools without a plausible claim to making an argument relating to a social or political issue (whether about the war on drugs or something else).

  On the other side of the narrow/broad divide, Justice Thomas wrote a separate concurring opinion endorsing Justice Black's dissenting opinion in Tinker v. Des Moines to the effect that public school students don't have First Amendment rights at school at all. (Pretty impressive that Roberts kept a majority together given the broad range of views among the five Justices that joined it.)

  Justice Breyer concurred in the judgment: he would have resolved the case on qualified immunity grounds without reaching the merits. Justice Stevens dissented, joined by Justices Souter and Ginsburg.
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What Did Morse v. Frederick Do to the Free Speech Rights of Students Enrolled in K-12 Schools?

A few thoughts about the holding of Morse v. Frederick, in which the Court held that a public K-12 school could punish a student for putting up a seemingly pro-marijuana-use sign — a "BONG HiTS 4 JESUS" at a school-sanctioned event (even such an event that's not on school property).

1. Justice Alito, joined by Justice Kennedy, joined the majority opinion but only

on the understanding that (a) it 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 (b) it provides no support for any restriction of 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.

Justice Alito's opinion, as the narrowest grounds offered by any of the Justices whose votes were necessary for the majority, thus seems to offer the controlling legal rule.

2. But what does this purported distinction between the speech in clause (a) (restrictable) and the speech in clause (b) (not restrictable) really mean? The trouble is that "speech that a reasonable observer would interpret as advocating illegal drug use" often also "can plausibly be interpreted as commenting on any political or social issue."

Consider, for instance, "legalize marijuana because marijuana is safe and fun." While this doesn't expressly advocate illegal drug use, a reasonable observer might well interpret it as so advocating: After all, the statement does say that marijuana is fun, and fun and safe things are often worth doing. Yet the statement that marijuana is fun is an important part of the comment on the political or social issue. While one might well support legalizing marijuana even if it weren't fun, the claim that marijuana is fun — and thus, implicitly, that people are losing a good deal of pleasure because of the marijuana ban — is an important argument against the ban.

Now consider "marijuana is fun." This doesn't expressly say "legalize marijuana" or even "the panic over marijuana abuse is overrated." But in context, it pretty clearly "can plausibly be interpreted as commenting on [a] political or social issue." It may implicitly take a stand on what the law should be; I'd wager that most people who hear "marijuana is fun" would interpret this as at least partly an endorsement of marijuana decriminalization (in the absence of qualifiers such as "but many fun things should be banned for the greater good"). And surely it comments on a "political or social issue" in the sense of saying something that's pretty directly relevant to the issue — whether marijuana is fun is surely relevant to whether it should be criminalized, though it is hardly dispositive.

Finally, consider "BONG HiTS 4 JESUS," which the majority said (and on this Justice Alito squarely agreed with the majority), "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug,'" or "as celebrating drug use — 'bong hits [are a good thing],'" two messages that the majority saw as constitutionally indistinguishable. It seems to me that these messages "can plausibly be interpreted as commenting on any political or social issue": They implicitly suggest that drug laws are a bad idea ("violate law X" often tends to suggest that, especially as to laws that are quite controversial), which is a comment on a political issue. And they suggest that drug use is a good idea, which is a comment on a social issue.

3. So I think that this distinction is logically unsound, even in this very case. And this unsoundness also makes it hard to see how the distinction will play out in the future. For instance, say that a school argues in favor of restricting anti-gay speech on the grounds that it poses a threat to gay students' "physical safety" by contributing to a culture in which gay-bashing is encouraged and gays are made to feel insecure. (Justice Alito's opinion stresses that the new exception for pro-drug speech is justified by the fact that such speech jeopardizes students' "physical safety," presumably through its persuasive effects.) And say a student wears a T-shirt saying "straight pride," or "homosexuality is an abomination."

Is this a "comment[] on any political or social issue," and thus immune from constitutional punishment, or is this something that a reasonable observer can interpret as advocating (or at least celebrating) hostility towards gays, hatred towards gays, personal insults of gays, or even attacks on gays? I would think it clearly was plausibly interpretable as "commenting on a political or social issue," but "advocating illegal drug use" is also so interpretable. "[C]an plausibly be interpreted as commenting on a political or social issue" doesn't mean what it literally seems to mean. So what then does it mean, and how would it play out as to anti-gay speech?

4. Justice Alito also tries to limit his opinion in another way:

I do not read the opinion to mean that there are necessarily any grounds for such regulation [of K-12 speech] that are not already recognized in the holdings of this Court. In addition to Tinker [which permits the regulation of student speech that threatens a concrete and "substantial disruption"], the decision in the present case allows the restriction of speech advocating illegal drug use; Bethel School Dist. No. 403 v. Fraser permits the regulation of speech that is delivered in a lewd or vulgar manner as part of a middle school program; and Hazelwood School Dist. v. Kuhlmeier allows a school to regulate what is in essence the school's own speech, that is, articles that appear in a publication that is an official school organ. I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.

So this is a narrow exception, which shouldn't be read beyond "advocating illegal drug use." But then Justice Alito stresses that the reason for this exception is that "Speech advocating illegal drug use poses a threat to student safety, and "illegal drug use presents a grave and in many ways unique threat to the physical safety of students."

What, doesn't illegal alcohol use by minors also pose a serious threat to student safety? How about just reckless driving by minors? Unprotected sex by minors, which can lead to sexually transmitted diseases — including deadly ones — as well as pregnancy, which threatens many girls' futures even if not their lives?

And, returning to the example from item 3, condemnation of certain sexual orientations, which can help foster a climate in which physical attacks on students of those orientations are permissible — or perhaps can even lead to depression that could lead to physical harms, including suicide? Perhaps one can argue that the latter is a lesser problem than the others; but that's far from obvious, it seems to me. The logic of Justice Alito's opinion thus suggests that there would indeed be grounds for regulation of at least some K-12 speech that goes beyond Tinker, Fraser, Kuhlmeier, and "speech advocating illegal drug use."

True, the majority opinion and Justice Alito's opinion don't necessarily offer grounds for regulation of any speech other than the speech Justice Alito mentions in the block quote. Very little necessarily follows from one opinion. But surely the logic of the "threat to student safety" argument substantially strengthens the case for regulating other kinds of speech, no? If so, what exactly does Justice Alito's assertion give us.

5. Finally, if Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected, many of my objections above would no longer be apt. There might be other objections — for instance, how would one tell whether harsh condemnation of homosexuality could reasonably be seen as endorsing attacks on homosexuals, or at least illegal discrimination based on sexual orientation? But maybe on balance these objections would be surmountable, and perhaps we should tolerate far broader restrictions of K-12 speech than we do now. (I hope to blog a little more about Justice Thomas's opinion, which frankly endorses very broad toleration of such restrictions.) And at least we wouldn't have what strikes me as a false distinction between "speech that a reasonable observer would interpret as advocating illegal drug use" and speech that can plausibly be interpreted as commenting on any political or social issue."

The trouble is that the controlling opinion wasn't framed this way. And the way it was framed strikes me as quite unsound, and hard to interpret sensibly.

UPDATE: Just to make clear, paragraph 5 refers to the hypothetical in which "Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected" -- simply, without any qualifiers such as that the Court's opinion "provides no support for any restriction of 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."

If one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue other than by advocating or endorsing illegal conduct," that isn't consistent with the rest of Justice Alito's opinion, which seems to limit the new exception to advocacy of illegal drug use (and perhaps a few other especially dangerous forms of illegal conduct). If one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue other than by advocating or endorsing illegal drug use," that just strikes me as an odd interpretation of Justice Alito's language.

But in any event, either of these interpretations would still pose the problems I identified in 2: The same speech may both plausibly be interpreted as commenting on a political or social issue other than by advocating or endorsing illegal conduct and plausibly be interpreted as advocating or endorsing illegal conduct. Consider "marijuana is safe and fun," which can both plausibly be interpreted as opposing the ban on marijuana and as endorsing drug use.

Finally, say one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue except when the speech can also plausibly be interpreted as advocating or endorsing illegal drug use" -- which is to say that speech is stripped of protection if one plausible interpretation is advocacy or endorsement of illegal drug use, even if another plausible interpretation is advocacy of changing the law.

That still seems like an odd interpretation of the text, but in any event it ends up being quite strikingly broad: After all, "decriminalize marijuana, because marijuana is safe and fun" may well be interpreted as advocating or endorsing marijuana use as well as arguing for a change in the law. Yet that presumably would be "speech on issues such as 'the wisdom of the war on drugs'" -- one important argument for ending the war on marijuana -- and thus the very sort of speech that Justice Alito seeks to assure us remains protected. So it seems to me that whatever qualifiers one tries to read into the controlling opinion, the conceptual internal contradiction at the heart of that opinion still remains.

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The Morse v. Frederick Dissent:

A couple of observations:

1. Justice Stevens' dissent, joined by Justices Souter and Ginsburg, seems to endorse some restriction on pro-illegal-drug-use speech (and not just speech that falls in the narrow generally unprotected category of speech intended to and likely to incite imminent illegal conduct). It is "willing to assume that ... the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly 'advocates the use of substances that are illegal to minors,'" and treats it as an implication of the "unremarkable proposition" "that deterring drug use by schoolchildren is a valid and terribly important interest." "[T]he First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students." And while Justice Stevens says that he is only "assum[ing] for the sake of argument" that "Given that the relationship between schools and students 'is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,' it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting," the tenor of all these statements strikes me as supporting, if grudgingly, restrictions on express advocacy of illegal drug use.

So it seems that everyone on the Court, with the possible exception of Justice Breyer, is willing to endorse some viewpoint-based restriction on some pro-drug speech (even outside the narrow and long-established incitement exception). Moreover, everyone with the exception of Justice Thomas and the possible exception of Justice Breyer, is willing to endorse what seems like a viewpoint-based First Amendment exception to do it. (Justice Thomas would say that pretty much all speech by K-12 students is unprotected from the government acting as educator, a viewpoint-neutral exception that allows a wide range of viewpoint-based speech restrictions.) The question is chiefly about the difference in the scope of the exception.

2. On the facts, Justice Stevens' argument that Frederick's speech wasn't advocacy of drug use strikes me as quite weak. Here is what he argues (one paragraph break added):

To the extent the Court independently finds that "BONG HiTS 4 JESUS" [can most reasonably be interpreted as] the advocacy of illegal drug use ... that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that. Ante, at 7 (positing that the banner might mean, alternatively, "'[Take] bong hits,'" "'bong hits [are a good thing],'" or "'[we take] bong hits'"). Frederick's credible and uncontradicted explanation for the message -- he just wanted to get on television -- is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. FN7 But most importantly, it takes real imagination to read a "cryptic" message (the Court's characterization, not mine) with a slanting drug reference as an incitement to drug use.

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. 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. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.

But it seems to me clear that the most plausible interpretation of Frederick's speech is precisely that marijuana use is good, and should be engaged in. The alternative meanings mentioned by the majority, which Justice Stevens points to, are quite consistent with that; even just "[we take] bong hits" has as its "most probable" interpretation that "[we take] bong hits [and that's good]." Ask high school students or recent high school graduates whom you know how they would likely interpret the banner. I asked three this morning, and all of them treated the statement as being generally pro-drug.

Doubtless the statement is ambiguous, as many short slogans are. For instance, it's not clear whether the "4 Jesus" really tries to bring in a religious meaning. But if you're looking for one "most plausible interpretation," "drug use is good" is surely part of it.

As to Justice Stevens' claim that the message is too "dumb" to be effective advocacy, I'm not sure: The theory even with most express advocacy is that the messages persuade when aggregated together, not that they will move many minds standing alone, and even jocular and "dumb" support of marijuana use may in the aggregate lead students to think of marijuana use as cool and fun. But more importantly, even dumb advocacy is still advocacy.

3. Perhaps, though, Justice Stevens should be arguing not that the speech isn't advocacy, but that it's not express enough to be advocacy -- that only messages that expressly say "take bong hits," "use marijuana," "people should use marijuana," and the like should be proscribable. "BONG HiTs 4 JESUS" definitely doesn't seem express about anything much; and limiting the exception to express advocacy would indeed limit the exception's scope.

At the same time, First Amendment law almost never draws distinction between express messages and pretty clear implicit messages, partly because any such distinction would either be very easy for speakers to evade, or attempts to prevent such evasion would eat away at whatever limitations the "express[ness]" requirement imposes. (Consider the related debates about express advocacy of election or defeat of a candidate in campaign finance law -- a debate that I unfortunately don't have the time to get into this weak, despite the fascinating-looking FEC v. Wisconsin Right to Life, Inc. decision.) And Justice Stevens doesn't at all confront these issues, as it seems to me an effective argument for limiting the exception to truly express advocacy should.

4. Finally, note that the debate about whether First Amendment tests should focus on (1) whether speech could reasonably be interpreted as advocating illegal drug use, making false statements, making threats, and the like (the majority's view, at least in this case) or on (2) whether speech "can most reasonably be interpreted" as advocating illegal drug use, making false statements, making threats, and the like is a very interesting one, and should get more attention than it has historically gotten. Courts must somehow determine what a statement "means," but there are plenty of statements that have multiple plausible meanings, each of which is reasonable and none of which is the one "most reasonable" one.

I've tried to find good discussions of this in the libel context, where the factual problem of ambiguity often comes up. As I understand it, the dominant view is that the jury must find the reasonable meaning. A small minority of states (perhaps only Illinois, I think) take the view that so long as a reasonable meaning is innocent rather than defamatory, the statement must be found nondefamatory. But in practice, unless I'm mistaken, the question is often the opposite, which is whether a reasonable person could interpret the statement as defamatory (even if other reasonable people would take the opposite view). I'd love to hear from people who have researched the subject more thoroughly than I have, and have some good cases -- likely libel cases -- that discuss this.

Nonetheless, it seems to me that Justice Stevens erred in deciding that "BONG HiTs 4 JESUS" would "most reasonably be interpreted" as simply being a "nonsense message"; instead, the most reasonable interpretation is a message of vague support for marijuana use, the very interpretation that the majority adopted using its focus on what constitutes a reasonable meaning. Thus, this interesting debate (whether we look to the reasonable meaning, which is to say the most reasonable meaning, or a reasonable meaning, which is to say some meaning that at least a substantial minority would accept) isn't fully implicated here.

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Student Speech After Morse v. Frederick: Just to respond to Eugene's very thoughtful post below about Justice Alito's concurring opinion in Morse v. Frederick, I personally didn't find the line Alito drew to be particularly difficult or illogical. It may be wrong, but I don't think it's difficult or illogical. As Eugene notes, Alito wrote that he joined the majority opinion with the following understanding:
(a) it 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 (b) it provides no support for any restriction of 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.
As I read this passage, Alito's view is that public schools can restrict speech so long as a) "a reasonable observer would interpret [the speech] as advocating illegal drug use" and b) the relevant speech cannot "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."

  Under this approach, there are a range of different statements that student speech can try to make, as well as a range of different interpretations that school administrators can make of the student speech based on the context. To determine whether the speech is protected, the court should first inquire if "a reasonable observer would interpret [the speech] as advocating illegal drug use"; if the answer is yes, the next question is whether the speech could be "plausibly . . . 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." If the second answer is "yes," then the speech is protected; if the second answer is "no," it is not. The result is a narrow type of student speech that school administrators can ban: in a nutshell, speech reasonably read as encouraging the use of illegal drugs that doesn't seem to have any other message.

  Eugene suggests that the line between the two categories isn't coherent, but I disagree. As Eugene notes, speech can both advocate illegal drug use and comment on a social or political topic. But I read Alito's part (b) to account for that and deem the speech protected (or at least to say that nothing in Morse permits it to be banned, which I assume means by default that it is protected). The speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic. At least that's how I read the opinion.

  Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

  To be clear, I'm not sure I agree with the line Alito drew. I personally find the idea that pro-drug student speech poses special dangers to student physical safety to be pretty odd. What's the connection? Is the idea that students will hear pro-drug speech, start doing drugs, become addicts, and then become violent in class? Alito doesn't say; he points to the majority's argument, but that majority's analogous point seemed to be about the harms of drugs among schoolchildren generally rather than the threat of physical violence. And as Eugene rightly notes, we don't know what other categories might also pose these "special dangers." But while I'm not sure I agree with Alito's line, I think the line is likely to be a relatively coherent one in practice.
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Thoughts About Orin's Thoughts on Morse v. Frederick:

I much appreciate Orin's response to my Morse v. Frederick post. Here is what strikes me as the heart of his claim, responding to point 2 of my post:

[Under Alito's approach, t]he speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic....

Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

The trouble, it seems to me, is that under Justice Alito's test as Orin (quite plausibly) reads it, the rule is not that the speech is unprotected if "a plausible interpretation" of the speech is "break [the rule] just for the thrill of opposing authority." Rather, the speech is unprotected only if this is the only plausible interpretation — if the speech "can't reasonably be read as commenting about a political or social topic."

So under Orin's reading, "BONG HiTS 4 JESUS" should be protected so long as it can reasonably be read as commenting about whether marijuana use is good (a "social topic") or whether marijuana criminalization is good (a "political ... topic"). And it seems to me that it can be so reasonably read (even if it can reasonably be read as just a prank).

It's true that sometimes if you urge someone to break the rules, or praise conduct that breaks the rules, that can't reasonably be read as an implicit argument that the rules are bad. "Give your classmates wedgies" is probably not a protest against battery law, or an assertion that Nietzschean supermen shouldn't be bound by such law — perhaps one can say that it must either be a joke or a call to violate a rule without any commentary on the rule's soundness (though I'm not completely positive even about that). I take it this, though, that this is largely because there's no reasonable debate about whether wedgies are good, or should be allowed at school. Everyone agrees that battery should be against the rules; praise of such battery is thus unlikely to be an endorsement of the battery, or a claim that the anti-battery rules are bad.

But it seems to me that "[take] bong hits," "bong hits [are a good thing]," and "[we take] bong hits" — the three reasonable interpretations of the sign set forth by the majority, which Justice Alito joined and didn't try to limit on this score — aren't within this category. There is a lot of disagreement about whether marijuana use is good, and about whether marijuana law is bad. It seems to me that these three interpretations of the slogan (all treated as reasonable interpretations by the majority) can therefore be read as commenting on the soundness and wisdom of marijuana use, and of marijuana law. It thus seems to me that we can't say the poster "can't reasonably be read as commenting about a political or social topic." So if Justice Alito's test is read as Orin suggests, the test would indeed be internally consistent — but it would be inconsistent with Justice Alito's conclusion that the speech here is unprotected.

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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.

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What Justice Thomas's Morse Concurrence May Mean for University Speech Codes:

Justice Thomas's concurrence in Morse argues that the First Amendment doesn't restrict public school authorities' power over student speech. But while the opinion focuses only on the issue at hand -- speech in K-12 schools -- a good deal of the arguments there would apply equally to speech in colleges and universities.

Justice Thomas's argument is basically structured as follows; my remarks regarding to how this argument applies to universities appear in italic.

1. Original meaning: "[T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." This also extends to the First Amendment as applied to the states by the Fourteenth Amendment, which was enacted in 1868. I'm not an expert on the history of speech restrictions in universities, but my tentative understanding is that the First Amendment was not seen as constraining such restrictions, at least until the 1950s or later.

In particular,

a. "Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800's, no one doubted the government's ability to educate and discipline children as private schools did." Public colleges and universities likewise developed after private ones, and in some measure as alternatives for private ones.

b. "Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled 'a core of common values' in students and taught them self-control.... Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong [including] idleness, talking, profanity, and slovenliness[]." [Footnote: "Even at the college level, strict obedience was required of students: 'The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.'"] The footnote expressly suggests this reasoning historically applied to college students.

c. In particular, public schools were seen as operating "in loco parentis," which is to say in place of the parents and with the rights that parents have to constrain and discipline their children. [Footnote: "My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student's age. Therefore, the fact that Frederick was 18 and not a minor under Alaska law is inconsequential."] The footnote expressly limits the argument to K-12 schools, but I'm not sure the logic can be so limited: As I understand it, colleges were also understood as operating in loco parentis, partly because throughout much of America's early history the age of majority was 21 rather than 18.

2. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech."

a. In particular, this is because "Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934) ('California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course ...')." Again, this expressly relies on a university case; and its logic applies even more to public universities than to public schools -- no-one is legally requiring anyone to go to a public university or to any university at all, while children are legally required to go to at least some public K-12 school.

b. "If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process." This too applies fully to universities, though of course substituting pupils (and in some measure their families) for parents.

c. The main alternative to this approach—the Tinker standard for when student speech is to be protected—is too subjective and malleable. This may well not apply to universities. The current rule, as applied by the few Supreme Court cases on university student speech and by the many more lower court cases, seems to be that student speech (outside class and class assignments) is fully protected, subject of course to the usual caveats applicable in all speech contexts. Such a rule would be pretty clear; the question is whether Justice Black would think that it's right.

d. It's important to maintain "the traditional authority of teachers to maintain order in public schools. 'Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.'" This too may not apply to universities. First, my sense is that broad public and elite opinion agrees that outright "disorder" is not as serious problem at universities as it is in K-12 schools. Second, my sense is that the same broad opinion takes the view that some amount of verbal defiance and even disrespect (outside the classroom) is healthy at universities, even if it's dangerous at K-12 schools. If Justice Thomas shares these views, and sees these pragmatic judgments as relevant, he may thus conclude that a different rule should apply for university students than or K-12 students.

e. "To elevate [student] impertinence [uttering at a school event what is either '[g]ibberish' or an open call to use illegal drugs] to the status of constitutional protection would be farcical and would indeed be to 'surrender control of the American public school system to public school students.'" Again, this might not apply to universities, for much the same reasons as those I mentioned under 2.d.

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So the bottom line: If Justice Thomas continues to focus on original meaning in free speech cases, or if he relies on the theory that those who "seek[] education offered by the State" must accept the requirements imposed by the State, then it seems likely that he would say that the First Amendment doesn't bar public universities from imposing speech restrictions on their students.

On the other hand, if Justice Thomas takes a more functional or pragmatic approach, focusing on the role of universities in public debate, and the role of public debate in universities, then he may take the view that university student speech is fully protected. (Of course, if I'm mistaken, and there is an 1800s and early 1900s tradition of protecting university student speech, either as a constitutional matter or at least as a matter of firmly embedded practice -- consider Justice Thomas's defense of anonymous speech in McIntyre v. Ohio Elections Commission, which was based on the tradition of anonymous political speech around the time of the Framing -- then Justice Thomas may also reach a pro-protection result on original meaning grounds, focusing on the meaning of free speech at the time the Fourteenth Amendment was enacted.)

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Stanley Fish Agrees with Justice Thomas on Student Speech:

Clarence Thomas Is Right, reads the headline to Fish's New York Times op-ed. (Recall that newspapers headlines generally aren't written by the authors of the articles, but here the headline is an accurate summary of Fish's view.) An excerpt:

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that "teachers taught and students listened, teachers commanded and students obeyed," he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

1. I'm not sure what the right rule for K-12 student speech ought to be, but it seems to me there are very strong arguments for endorsing the constitutionality of the "teacher command" view of schooling, in which students are taught discipline and obedience first and foremost. There are doubtless benefits to providing more freedom for students, but my sense is that there are serious drawbacks to it as well.

Among other things, it may well be that constraint is especially important for students who are already in jeopardy of academic or other problems, or in schools that are already suffering from such problems -- disproportionately schools that educate students who are poor, come from broken families in which less discipline is present, or are surrounded by extra risk of drugs and violence. Eminently well-intentioned egalitarians, including ones who support liberty for adults, might well conclude that constraint for children is the way to achieve more equality (and even liberty) for society more broadly.

I'm not expert enough on the subject to know what works and what doesn't. But the "teaching kids discipline is the key to promoting equality and liberty for adults" approach strikes me as plausible enough that it at least can't be dismissed out of hand, whether by conservatives or liberals. The special role (and history) of K-12 education may well justify leaving the free-student-speech vs. pervasive-constraint decision to schools, and the practical realities may well justify many schools' endorsing the pervasive-constraint perspective. So even liberal fans of Prof. Fish shouldn't see the Fish/Thomas pairing as a particularly odd couple on this score.

2. It's also worth noting that Prof. Fish would apply a similar rule to college students -- a position that, I've argued, is supported by some aspects of Justice Thomas's opinion, though not by others. I take it that if Prof. Fish is serious about his parenthetical, then it would at least apply to the entire range of speech that Justice Thomas is discussing, though at a college level: speech either on campus or off it (even in entirely non-academic activities, see the Old Jack Seaver case that Justice Thomas cites favorably in his opinion), whether the speech is political or not (Justice Thomas, unlike Justices Alito and Kennedy, would allow the limitation of expressly political speech), and whether the speech expressly advocates illegal conduct or not.

Prof. Fish doesn't explain, unfortunately, why exactly such restrictions are necessary and proper. Justice Thomas might endorse them, even at the college level, if he thinks that's what the original meaning of the First and Fourteenth Amendments requires, but I take it that Prof. Fish is not an originalist and thus can't rely on that. And the intuitive arguments about the need for extra discipline and constraint for K-12 students don't easily carry over to college students, who tend to be adults, albeit young adults. Here's the heart of Prof. Fish's argument:

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy -– the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

That may well justify very broad teacher authority within the classroom, but it doesn't tell us much about what college student speech should be allowed outside the classroom, especially at events that are pretty far removed from normal pedagogy.

In any case, an interesting op-ed that struck me as worth noting. Thanks to Gerald Wachs for the pointer.

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