Academic

Kanter on Morse v. Frederick

By Lawrence Solum

Stephen Kanter (Lewis & Clark Law School) has posted Bong Hits 4 Jesus as a Cautionary Tale of Two Cities (Lewis & Clark Law Review, Vol. 12, No. 1, 2008) on SSRN.  Here is the abstract:

This article closely analyzes the five separate opinions in Morse v. Frederick (the Bong Hits case), and criticizes the Supreme Court for depreciating and diluting important First Amendment values. I also draw important lessons from the Justices' differing views and suggest what they portend more generally for the likely direction of the current United States Supreme Court. As an example, I suggest that Justice Alito's opinion indicates that he is a candidate to join a new, more flexible center on the Court with Justice Kennedy, and potentially others. If my prediction proves accurate, this will erode the unhealthy and overly rigid blocs that many others forsee for the Roberts Court, and improve the quality of the process and work of the Court.

The article also draws comparative lessons from a somewhat similar T-Shirt incident at Tigard High School in Oregon that occurred twenty years ago and was handled very differently from Bong Hits. This comparison shows that the Tigard process and resolution were much more faithful to a robust system of free expression and protection of student rights than Morse v. Frederick. The Tigard model will not work in all situations, but it has a lot to teach actors, lawyers and the Supreme Court in future student rights cases.

This article, together with companion essays on Morse v. Frederick by Dean Kenneth Starr (who argued Bong Hits for the school), and Professors Erwin Chemerinsky, Sonja West, Richard Garnett, and Douglas Laycock on Morse v. Frederick, provide a one-stop, balanced and fairly comprehensive look at the Bong Hits case and student constitutional rights more generally. The companion essays, and this article, can be found at 12 Lewis & Clark L. Rev. 1, 1-130 (2008).

Full post as published by Legal Theory Blog on May 16, 2008 (boomark / email).