Federal Judiciary

Free Speech in Schools: Much Ado About Nothing?

By Robert Loblaw

Morrison v. Board of Education of Boyd County, 06-5380 (6^th Cir., April 9, 2008)

Last October, I wrote about this school speech decision from the Sixth Circuit:

Here?s a difficult First Amendment case that pits students? rights to express their religious beliefs about homosexuality against the right of homosexual students not to be harassed at school. After getting sued for trying to prevent its students from forming a Gay Straight Alliance, the Boyd County High School in Kentucky learned an important lesson. But was it the right lesson? The plaintiff in this case argues that administrators went too far in the other direction when they proceeded to enact a speech code that prohibited students from making stigmatizing or insulting comments about homosexuality.

The new policy may have made life a little easier for Boyd County?s gay students, but what about the rights of Christian students who believe that homosexuality is a sin and that Christians have a duty to make this belief known? Plaintiff Timothy Morrison is one such student, so he sued the school district, arguing that the new speech code violated his First Amendment rights. The school has since rescinded the speech code, so the district court dismissed the suit as moot.

A divided panel of the Sixth Circuit reversed. Writing for the majority, Judge Moore concluded that Morrison had a viable claim for nominal damages on the theory that the old policy chilled his First Amendment right to criticize homosexuality. Judge Cook dissented, arguing that “[t]his is a case about nothing.” (See here for the controversial source of this quote.)

The school district asked for rehearing, and in a surprising move, the third panelist switches sides. District Judge John Adams swings the vote toward Judge Cook, which means that Morrison?s suit will not proceed. With the speech code rescinded, the only remaining issue in the case was whether Morrison can recover damages for his decision to self-censor his speech while the policy was in effect.   The new majority concludes that this claim of a “subjective chill” on Morrison’s speech cannot be a basis for standing. 

Judge Adams’ switcheroo forces Judge Moore to adapt her majority opinion into a dissent. She writes,

[T]he majority?s peevish sense that the instant action is a waste of the federal courts? time minimizes the federal courts? essential role in protecting free expression under the First Amendment.

Full post as published by Decision of the Day on April 09, 2008 (boomark / email).