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What is the State of The First Amendment in Schools?

By That Lawyer Dude

As most of you know by now, the Supreme Court ruled in favor of the school district in Fredrick v. Morse (or in the Supreme Court case Morse v. Fredricks A/K/A the "BONG HITS FOR JESUS" Case)the SCOTUS ruled that students free speech rights could be curtailed when their message inspires drug use (See dissent by Stevens.)Now here is the interesting thing: The majority opinion does not specifically limit the language to illegal drug use. Hence a student rally to raise funds for NORML could conceivable run afoul of the majority opinion... STOP RIGHT THERE!!
Justice Alito, recognizing the right students have to Political Speech, along with Justice Kennedy filed a concurrence that says that the speech has to advocate illegal drug use. Presumably if the issue were so framed then Alito would have been in the majority as well with the 3.5 dissenting votes (see Justice Bryers decision) his and Justice Anthony Kennedy.

A few thoughts. First, I wrote that I would have allowed the speech because I did not feel it was a school matter. If the issue had been framed that it was a school matter, then I would have ruled the speech unprotected because "BONG HITS FOR JESUS" is a nonsensical phrase and conveys no thought (which was admitted by Fredrick's who was just looking to get on TV and to piss off principal Morse.)In a large sense then, while I wouldn't get on the 9th circuit, maybe I am qualified to be on SCOTUS!!

Secondly does it bother anybody that Justice Thomas cannot find any precedent for TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) in the constitution. Damn. The First Amendment says "Congress shall make NO LAW...abridging the Freedom of Speech..." and the Fourteenth Amendment applies it to the states. I don't like reading things into the Constitution but I don't like reading them out or ignoring them either. I do not buy that just because 19th century American schools didn't think to enforce speech rights doesn't mean that someone construing the Constitution didn't think the rights existed. The issue never faced the SCOTUS.

I also find that while historically one could point to the in loco parentis doctrine, that has been withered away by exactly the process Thomas advocates, the votes of parents. Today's parents have shot down a lot of rules including dress and even speech rules through both litigation and election of like minded school boards. Critical thinking in education (which requires that students think and object and support points etc) are all part of today's social studies curriculum . The hodgepodge of thinking on 1st Amendment issues that Thomas J. objects to, is far more possible under his standard than that of the Tinker standard. To the extent that Justice Thomas sees a need to amend the Constitution to include School speech in the phrase Congress shall make no law... I do not think that it either is anti originalist nor inappropriate to state that NO meant NO even in the 19th century, even though SCOTUS was not asked.

Finally, as if to put an exclamation point to Justice Alito's concurrence, SCOTUS on Friday issued a rebuke to a school that banned a shirt worn by a student that had pictures of Cocaine, and a martini glass and referred to President Bush as a coke snorting, weed smoking, alcoholic. (See this story and this post) The Second Circuit had ruled against the Vermont School district and the SCOTUS refused to review the decision. The case is Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied sub nom. Marineau v. Guiles, 75 USLW 3313 (U.S. June 29, 2007) (No. 06-757).

So to sum up my opinion of the law on School speech, Tinker is still good law. Just make sure your message is political speech and can easily be understood to be political, and keep the nonsense to a minimum.

Full post as published by That Lawyer Dude on July 01, 2007 (boomark / email).