Given my abhorrence for what “progressive” speech codes / “free speech zones” / “tolerance” and “diversity” intitiatives are doing to undercut first amendment protections, I would be remiss were I not to forcefully criticize the Administration for its equally deplorable support of a challenge to free speech in danger of being supported by the Supreme Court, with Anthony Kennedy (the progressive’s conservative) acting as the swing vote.

Jacob Sullum, writing in this month’s Reason (print edition only), supplies the background and some of the perspective:

When Joseph Frederick, a Juneau, Alaska, high school senior, unrolled a 14-foot banner proclaiming “Bong Hits 4 Jesus” at a 2002 Winter Olympics torch relay rally near his school, he was trying to attract TV cameras.  Instead he caught the eye of Deborah Morse, the school’s principal, who crossed the street, grabbed the banner, crumpled it up, and suspended Frederick for 10 days.

Morse was offended not by the banner’s religious content but by what she took to be its pro-marijuana message.  When the U.S. Supreme Court considered the constitutionality of Morse’s heavy-handed censorship in March, it seemed the majority might be prepared to accept her interpretation and obligingly carve out a “drug exception” to the First Amendment.

“Illegal drugs and glorification of the drug culture are profoundly serious problems for our nation,” former Solicitor General Kenneth Starr told the court on behalf of Morse and the school district.  Therefore, he implied, a First Amendment that protects student’s rights to wear a black armband in protest of the Vietnam War might not protect his right to wear a “Legalize It” t-shirt in protest of the war on drugs.

Frederick’s lawyer asserted that the student’s banner, which he displayed at a privately sponsored, off-campus event for which students were released from class but to which he came directly from home, did not disrupt school.  Justice Anthony Kennedy, a swing vote whom The New York Times alarmingly described as “perhaps the most speech-protective of the justices,” disagreed, saying the banner was “completely disruptive” because it contradicted “the message…the school wants to promote.”

The Bush administration, siding with the school district, endorsed a similarly broad understanding of disruption, saying a school “does not have to tolerate a message that is inconsistent” with its educational mission.  Justice Samuel Alito called this argument “very, very disturbing,” noting that schools could suppress a wide range of speech “under the banner of getting rid of speech that’s inconsistent with education missions”—a banner ever vaguer than “Bong Hits 4 Jesus.”

Talk about a blow to free speech, and a bit of moralistic judicial activism! 

It remains to be seen what the Supreme Court will do—my hope is that they side with the 9th Circuit Court of Appeals, who overturned a district court ruling favoring the schoolboard, but if Kennedy was doing more than simply playing Devil’s advocate during oral arguments, the potential for a disastrous ruling along the lines of Raich and Kelo (and O’Connor’s cowardly affirmative action punt) could be forthcoming. 

Interestingly, those supporting free speech protections represent an unusual alliance:

The American Civil Liberties Union has directly participated in this case on the side of Joseph Frederick. The Center for Individual Rights, National Coalition Against Censorship, and other groups that advocate First Amendment protection filed amici curiae in support of Frederick.[8] Students for Sensible Drug Policy also noted that banning drug-related speech would undermine their ability to have chapters in public schools. The American Center for Law and Justice, and Rutherford Institute, and several other Christian Right groups also filed briefs on the side of Frederick, reasoning that if schools could ban “offensive” speech they would also be able to prohibit religious speech with which administrators disagree.[9][10]

The National School Boards Association supports Morse and the Juneau school district, arguing that schools should be able to regulate controversial speech.[11] Solicitor General Paul Clement has filed an amicus brief in support of the school district’s decision to prohibit controversial speech.[12]

The concern I have over the 9th Circuit’s reversal is that, for all its effective reasoning with respect to free speech, it left open the door for those on the Supreme Court interested in shaping public policy and carving out exemptions in the first amendment to get their meddling feet inside by ruling that the event was, in fact, a school event. 

Reasoned the 9th Circuit, unanimously, with Judge Andrew Kleinfeld writing:

] Judge Kleinfeld acknowledged that the courts give high school students less leeway than adults when it comes to certain offensive speech—such as that which is sexually suggestive. Even if the contentious statement displayed by Joseph Frederick could be construed as a positive message about marijuana use, he reasoned in judgment, “. . . in the absence of concern about disruption of educational activities, (could a school) punish or censor a student’s speech because it promotes a social message contrary to one favored by the school?”[7] In his view expressed for the Court, he wrote,”The answer under controlling, long-existing precedent is plainly, ‘No’ … ‘Bong Hits 4 Jesus’ may be funny, stupid, or insulting, depending on one’s point of view (but it is not) plainly offensive (in the manner of sexual innuendo).”

Of course, the problem here—as we’ve seen in debates over “torture” or “patriotism,” et al.—is that abstract, subjective terms like “offensive” (or “severe emotional distress”) can be expanded to include a host of perceived “offenses” or “distresses” that can then be shoehorned into the existing litany of social and policy faux pas.

And Justice Kennedy, having seized on the “school event” rationale—though the event was private, and the boy came straight from home—has intimated that such a banner is, in fact, “disruptive,” flying in the face of the message the school wishes to promote.

—Which, to those of us who don’t laugh off slippery slope arguments so easily, should give enormous pause—firstly, because the “message the school wishes to promote” is often at odds with competing readings of history by scholars outside the public school system.  Secondly, as Alito notes, these “messages” are potentially unconstrained:  will students, for instance, be able to protest against race-based affirmative action if, in fact, the “message” the school wishes to promote is one that privileges the shallow and illiberal concepts of “diversity” and “tolerance” (improperly undrstood)?

Could a student be silenced for promoting, say, Columbus Day, if the school’s “message” is that the explorers helped to colonize the new world against the will of the natives—and so are imperialist racists whose actions were on par with cultural genocide?

Most interesting, here, is that Kennedy would somehow be a “swing vote” in this case.  If Alito is troubled by the petitioner’s argument, where do the other justices stand?  We know where the administration stands—and I find their arguments completely unpersuasive—but I’m curious to know what the ideological breakdown is here.  Anyone willing to handicap the Justices?

For his part, Chief Justice Roberts seems to think the case is less about free speech than it is about money.  And here is Kenneth Starr’s rebuttal to the respondant’s claim that he’d been unlawfully punished:

Vernonia School District 47J v. Acton and Earls as cases demonstrative of the Court’s strong past stances on matter related to combating the ‘scourge of drugs’. In closing and in summary he said:

“To promote drugs is utterly inconsistent with the educational mission of the school. The court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission. We know that there are constitutional limits (to lawful political expression). Those limits are captured in Tinker. A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the class room: we are light years away from that.”

But in what way can the school be considered to be “promoting drugs” simply because one of its students has chosen, on his own time, and of his own volition, to take that position?

And more importantly, if a school is forced to absorb as “promotion” any opinions expressed by its charges, its predictable course of action will be to insist on a form of ideological conformity—if not in thought than at least in action (either positive or negative).  And this completely undermines the spirit of inquiry, and turns schools into de facto propaganda mills.

In Hazelwood, the Court held that public school officials can limit what appears in school-sponsored publications. School officials can censor private forum student newspapers when they can justify the decision by appealing to a legitimate educational purpose. However, they can’t censor articles based solely on personal opinion.

Starr cited Hazelwood v. Kuhlmeier in support of the petitioners.  But my understanding of the case would lead me to go the other way and conclude that a student’s right to protest a controversial social policy (however “ironically” he did so)—a social policy that has, it should be pointed out, been the subject of ballot initiatives and political treatises coming from both fringe Democratic lawmakers, many classical liberals, and innumerable libertarian pundits—is certainly protected by the first amendment, and that to argue that school officials can censor such political speech on the basis of protecting the status quo (the “scourge” of drugs, after all, can be plausibly argued is a result of prohibition itself, and that censorship with respect to dissenting opinion is actually promoting a continuation of the “scourge”) is, in effect, to argue that school officials can censor based on an opinion.  And that, I’d argue, flies in the face of Kuhlmeier.

The Religious Right—as well as those of us who are concerned that public education has taken on a decidedly “progressive”, PC bent—have every right to worry that a SCOTUS decision overturning the 9th Circuit Courts reversal would be yet another step toward carving out first amendment “exemptions.” Which is precisely the kind of thing that, when taken to its logical extreme, will turn the first amendment on its head—and make it permissable to speak on certain subjects, instead of making it impermissable to censor based on discomfort or disagreement with unpopular sentiments (or, in this case, sentiments that are unpopular in those circles where power is gathered and can be used to undermine the framer’s intent).

Of course, I’m no lawyer—my standard disclaimer for posts like this—so I’m interested to hear your views.

For my part, I’m disappointed that the administration would back such an expansion of speech restrictions—but I’m heartened by what I hear from Alito.

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More here—which includes a prediction by law prof Ross Runkel of LawMemo and the Supreme Court Times Blog that Morse and the School Board will win:

My view: The 9th Circuit was wrong. Morse will win.

This case is far different from Tinker, and the Court should use a different reasoning process.

In Tinker, the students wore armbands that expressed opposition to the Government’s policy in Viet Nam. In other words, the students were expressing a political opinion, and that was a lawful opinion.

In Morse v. Frederick, the student was advocating an illegal act. A bong hit refers to using marijuana, which is illegal under federal law. The student said the banner was a meaningless joke, but his characterization is not what would appear to a reasonable person viewing the banner.

In Tinker, the Court used a balancing test, balancing the students’ free speech interest against the school’s interest in avoiding disruption. No disruption appeared, so the students’ political speech was protected. In the Frederick case, there was no political opinion being expressed – only Frederick’s support for an illegal action. Therefore, there should be no balancing by the Court. The school has a right to prohibit advocacy of illegal actions without showing that the student has caused a disruption.

As for immunity, the principal is entitled to immunity because there was no constitutional violation.

Again, this argument is tied to an understanding of what constitutes a political opinion and what does not.

But how can one say that protesting the Vietnam engagement—which was established public policy—is different in spirit from protesting anti-marijuana laws, which, while also established public policy, are nevertheless the subject of a number of political attacks seeking to overturn the laws in question?

Remember:  at one point, mixed marriages were an illegal act.  Is the argument here that protesting such bad law is subject to censorship—which would have the effect of criminalizing dissent and maintaining the status quo?

Because if so, that’s a particularly pernicious view of how free speech should operate. 

Which is not to say Professor Runkel, Emeritus at Willamette University College of Law, is wrong in his prediction about the outcome.  Just that his reasoning—if it happens to be shared by the Court—is sure to chill free speech, and weaken the First Amendment.