In July, a fractured Supreme Court issued four separate rulings in Morse v. Frederick, the case involving a high school student who was suspended after standing on a public sidewalk in Juneau, Alaska, displaying a banner that read “Bong Hits 4 Jesus.” (See CN#104.) The result is a narrow but disturbing loss for First Amendment advocates, who are left to wonder how it might be interpreted and applied in the future.

The opinion of the Court, written by Chief Justice Roberts, concluded that the event was school-sponsored, and that school officials had a right to restrict Frederick’s speech because of the “compelling interest” in deterring drug use. While conceding that “the message on Frederick’s banner is cryptic” and was “no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all,” the Court nonetheless held that student speech is not protected if it “can reasonably be regarded as encouraging illegal drug use.”

Justices Alito and Kennedy wrote separately to emphasize that the decision should be interpreted narrowly to apply only to advocacy of illegal drug use. According to them, it “provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue ….” This suggests that Frederick would have won had his banner read “Legalize Bong Hits 4 Jesus.”  Justice Thomas’ opinion, in contrast, does not even mention drugs or Frederick’s message. Instead, he wrote that students have no First Amendment rights in school and that Tinker, the Vietnam-era case holding that students do not "shed their constitutional rights" at the schoolhouse gate, should be overruled.

In a dissenting opinion, Justice Stevens noted, “It is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy.”

Stevens scoffed at the Court’s acceptance of the principal’s view—despite Frederick’s own disavowal—that the banner’s message represented advocacy of illegal drug use, and that it posed a genuine threat to impressionable students. He pointed out that the Court has typically required much stronger evidence of the likelihood of actual harm before scaling back First Amendment rights. “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.

It is precisely the subjective way that any mention of illicit conduct might be interpreted as "advocacy" that is the most disturbing element in this case. As the Alito and Kennedy opinion emphasizes, schools have the discretion to regulate speech that disrupts the classroom, but the open discussion of controversial social and political matters is key to the educational process, and must be protected. We hope educators respect this principle when deciding whether student expression is a direct incitement to breaking the law or simply states a position or questions current policy.

Click here for further commentary on Morse v. Frederick, and to read NCAC’s.