Bill Posner (not Richard Posner) writes a rather interesting article about the now infamous banner at the center of Morse v. Fredrick over at his blog, Language Log. Posner contends that the Justices, especially the conservative ones, may have overanalyzed the banner in question by ignoring “the possibility that the utterance is meaningless.” By assuming that Fredrick meant something, the Court was ignoring the jurisdiction that a completely meaningless banner would fall under.
To use an example from Bertrand Russell that Posner mentions, a banner could in theory read “Quadruplicity drinks procrastination.” If that were the case, Deborah Morse could have conceivably taken up the banner. The Court almost surely would have ruled with Fredrick in this hypothetical case because nonsensical speech has always fallen under more content-neutral analysis. The court would have looked at the disruption that was caused by the banner and would have most likely found that there was insufficient disruption to warrant the restriction of free speech. The court in the real-life Morse largely rejected a content-neutral viewpoint and wasn’t ashamed to admit it. Posner summarizes his expert opinion on the subject:
In sum, from the observation that the banner contains a reference to smoking marijuana, and the false assumption that the banner must express a proposition, the Court has invalidly inferred a particular proposition. The slogan is in fact meaningless in the sense that it expresses no proposition, and Frederick gave a perfectly plausible explanation for the use of a meaningless slogan. The Court was therefore wrong in finding that the banner advocates the use of marijuana.
I’m not sure if Posner’s opinion strengthens the dissenting opinion written by Justice Stevens or the opinion authored by Justice Breyer concurring in judgement with the majority. I tend to align myself with Justice Breyer’s qualified immunity reasoning where he states that its impossible to know exactly what he meant or how people interpreted it, so Morse was justified in acting the way she initially felt or rather that she has the right to act the way that she did. The minority goes as far as to say that the banner absolutely was nonsensical and she went to far. I’d say Breyer is the winner here because Posner concedes that the banner almost certainly contains a reference to drugs but contains no explicit implications regarding the beneficial or harmful nature of those drugs. I also think Breyer wins here because I like Justice Breyer more than Justice Stevens, but please excuse my lack of content neutral analysis.