Posted by Eugene Volokh:
The Limits of *Morse v. Frederick*:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246400649
I've often heard people defending various K-12 speech restrictions by
citing [1]Morse v. Frederick (the BONG HiTS 4 JESUS case). Many of
these people think Morse is wrong, but argue that it's binding
precedent.
But as to many of these arguments (see some [2]in this thread), Morse
is often not very relevant, much less binding. One premise of the
Morse majority is that the speech wasn't "political":
Elsewhere in its opinion, the dissent emphasizes the importance of
political speech and the need to foster �national debate about a
serious issue,� as if to suggest that the banner is political
speech. But not even Frederick argues that the banner conveys any
sort of political or religious message. Contrary to the dissent�s
suggestion, this is plainly not a case about political debate over
the criminalization of drug use or possession.
Two of the five Justices in the majority (Justices Alito and Kennedy)
stressed this in the very first paragraph of their opinion:
I join the opinion of the Court on the understanding that (a) it
goes no further than to hold that a public school may restrict
speech that a reasonable observer would interpret as advocating
illegal drug use and (b) it provides no sup-port for any
restriction of speech that can plausibly be interpreted as
commenting on any political or social issue, including speech on
issues such as �the wisdom of the war on drugs or of legalizing
marijuana for medicinal use.�
What's more, three of the four dissenters agreed: "This is a nonsense
message, not advocacy."
Now, as [3]I argued when the decision came down, I think the Justices
were wrong to say that Frederick's message was nonsense, or even just
nonpolitical. The majority said "BONG HiTS 4 JESUS" "could be
interpreted as an imperative ... 'smoke marijuana' or 'use an illegal
drug,'" or "as celebrating drug use -- 'bong hits [are a good
thing],'" two messages that the majority saw as constitutionally
indistinguishable. But these messages indeed "can plausibly be
interpreted as commenting on any political or social issue": They
implicitly suggest that drug laws are a bad idea ("violate law X"
often tends to suggest that, especially as to laws that are quite
controversial), which is a comment on a political issue. And they
suggest that drug use is a good idea, which is a comment on a social
issue.
Yet while the Court applied its own test incorrectly to these facts,
it hardly follows that it should apply its own test incorrectly to
other facts as well, especially ones that are quite far removed from
these. Perhaps Morse supports the view that highly opaque statements
might be seen as nonpolitical. Perhaps it supports the view that mere
advocacy of illegal conduct is nonpolitical, though I think that is
inconsistent enough with the rest of the Court's precedents that I
don't think it's right to read Morse even that broadly.
But surely the T-shirt below (to give the example that triggered this
post) clearly "can plausibly be interpreted as commenting on any
political or social issue": [abortiongrowinggrowinggone.pdf]
It is saying that abortion is immoral, so people shouldn't engage in
it. And it is probably also saying that it is so immoral that abortion
should be legally restricted. (That abortion is currently
constitutionally protected doesn't matter: That just means that
legally restricting it would require either electing Presidents who
appoint enough Justices who would hold that abortion is
constitutionally unprotected, or enacting a constitutional amendment
to the same effect -- politically quite difficult, especially at this
point, but certainly calls for this are political speech. Plus of
course even if abortion can't be entirely banned, it can be restricted
in various ways, which the T-shirt likely implicitly calls for as
well.)
Now indeed if the T-shirt said something like "Kill abortionists,"
then perhaps the Morse analogy would govern. I would still say that
such a statement is political speech and thus Morse shouldn't apply,
but I can see the argument that statements in Morse distinguish, in
the K-12 public school context, between advocacy of illegal conduct
and advocacy of changing the law (or changing social attitudes). But
nothing in Morse would extend to the T-shirt mentioned above.
I can understand why many people are upset at Morse. I can also
understand why many people like Morse and wish it had gone further,
perhaps (as Justice Thomas suggested) to give K-12 school
administrators blanket authority to restrict student speech. But if
we're looking at what the language of Morse actually means, it seems
to me that we need to acknowledge that it's distinctly limited in its
scope.
References
1. http://www.supremecourtus.gov/opinions/06pdf/06-278.pdf
2. http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246386747
3. http://volokh.com/archives/archive_2007_06_24-2007_06_30.shtml#1182830987
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