One of the cases that we’ve been looking forward too the most, Morse v. Fredrick, was decided today. By a vote of 6-3, the court held that Principal Deborah Morse was not acting unconstitutionally when she suppressed Fredrick’s right to hold up a banner that read ‘BONG HITS 4 JESUS.’ You can read my recap of the case here.
Five justices (Scalia, Kennedy, Thomas, Alito) signed on to the majority opinion written by Chief Justice Roberts. The majority opinion went after the controversial issue in this case- free speech.
The Chief Justice begins his opinion with a rather friendly reminder that “[o]ur cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” Tinker v. Des Moines (1969).” The court also delves into hipster slang:
At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declara- tion, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
They later move on to argue at great length that the school has the right to limit messages that go against its core academic purpose. One of the concluding paragraphs sums up the blatant viewpoint discrimination that the majority was partaking in.
School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established 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.
Justice Breyer contends that it is necessary only to rule on the qualified immunity issue. The majority opinion addresses his arguments in footnote 1:
JUSTICE BREYER would rest decision on qualified immunity without reaching the underlying First Amendment question. The problem with this approach is the rather significant one that it is inadequate to decide the case before us. Qualified immunity shields public officials from money damages only. See Wood v. Strickland, 420 U. S. 308, 314, n. 6 (1975). In this case, Frederick asked not just for damages, but also for declaratory and injunctive relief. App. 13. JUSTICE BREYER’s proposed decision on qualified immunity grounds would dispose of the damages claims, but Frederick’s other claims would remain unaddressed. To get around that problem, JUSTICE BREYER hypothesizes that Frederick’s suspension—the target of his request for injunctive relief—“may well be justified on non-speech-related grounds.” See post, at 9. That hypothesis was never considered by the courts below, never raised by any of the parties, and is belied by the record, which nowhere suggests that the suspension would have been justified solely on non-speech-related grounds.
Justice Thomas writes an obscene concurring opinion that contends “the standard set forth in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), is without basis in the Constitution.” If any of you don’t remember high school civics, Tinker was one of the first cases to uphold the rights of students in public schools. Here is how he supports his argument:
Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not.
In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.
I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.