By Lisa Keen
Washington, DC – The U.S. Supreme Court issued a decision this week, making it easier for school authorities to censor the speech of students who express messages authorities fear others might perceive as promoting the violation of a law or school policy. Disagreeing with the opinion, Justice Stephen Breyer said the decision could promote "viewpoint-based restrictions" to the point of curbing mere conversations about the need for change in certain laws.
But Jon Davidson, legal director for Lambda Legal Defense and Education Fund, said the decision is narrow enough to pose those restrictions only in regards to speech concerning illegal drug use and he does not believe there is any green light for authorities who wish to restrict pro-gay speech.
His reaction might have been different, of course, had this week's decision in Morse v. Frederick come before the 2003 Lawrence v. Texas decision striking down sodomy laws. In Morse, Chief Justice John Roberts wrote that "we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion."
Breyer's opinion said the case should have been dealt with on narrow technical grounds rather than on its First Amendment claim. He strongly opposed the majority's claim that schools may censor speech that can "reasonably be regarded" by others as encouraging illegal activity.
While the majority opinion "is theoretically limited to speech promoting the use of illegal drugs," said Breyer, "it could in fact authorize further viewpoint-based restrictions." He said the court's ruling could extend to a mere "conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain" because "speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws."
But Davidson said he thinks that a concurring opinion from Justices Samuel Alito and Anthony Kennedy – who joined Roberts and Justices Antonin Scalia and Clarence Thomas in the majority – essentially prevents the use of the decision for the expression of other activities which might be illegal, such as the medicinal use of marijuana, bans on same-sex marriage, or in Florida, the adoption of children by gay couples.
Alito and Kennedy's concurrence explicitly states that they join the majority decision "on the understanding that… it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as … legalizing marijuana for medicinal use."
Morse v. Frederick involved an incident in which a high school principal, Deborah Morse, snatched a banner that read "Bong Hits 4 Jesus" out of the hands of a student, Joseph Frederick, during an Olympic torch parade students were watching during school hours.
The majority made no attempt to discern whether Frederick was, in fact, participating in the school-sponsored observation; he had not yet gone to school that day and was observing the parade from a position across the street from the school and other students.
In previous decisions from the Supreme Court, justices have ruled that students, like other citizens, have a First Amendment freedom of expression but that schools can curb that if they disrupt the "work and discipline of the school," constitutes a threat, or "offensively lewd and indecent."
The majority declared that the principal reasonably interpreted the banner to encourage other students to use illegal drugs and that, while Frederick was not on school property, it was reasonable to conclude that he was in attendance at a school-sponsored event.
"Student speech celebrating illegal drug use at a school event …poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse," wrote Roberts. The majority concluded that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."
Lambda Legal submitted a friend-of-the-court brief urging the high court to reject the principal's argument in this case because the banner was neither interfering with the rights of other students nor posing a threat. But Lambda's main concern with the case was that the court might "tie a school's hands to address conduct that causes other students serious harms," such as anti-gay harassment. Davidson said Lambda is "relieved that today's decision does not open the door for schools to limit the speech supporting the rights of lesbian, gay, bisexual and transgender students."
"Students still have rights to talk about subjects such as sexuality," said Davidson, and he noted that the majority rejected a recommendation from the Bush administration to give school authorities the leeway to censor any speech which conflicts with a school's mission.
But the dissent, led by Justice John Paul Stevens, said the principle the majority opinion articulates "has no stopping point."
"In the national debate about a serious issue," wrote Stevens, "it is the expression of the minority's viewpoint that most demands the protection of the First Amendment."
Joined by Justices David Souter and Ruth Bader Ginsburg, Stevens also pointed out that Roberts was being selective in his reasoning because, in another opinion issued June 25, Roberts proclaimed that when the "First Amendment is implicated, the tie goes to the speaker" and that that "when it comes to defining what speech qualifies as the functional equivalent of express advocacy . . . we give the benefit of the doubt to speech, not censorship."
In that latter case, Roberts handed a victory to the Wisconsin Right-to-Life which had sought to air television ads to put pressure on Wisconsin's two Democratic U.S. Senators not to filibuster certain judicial nominees in 2004. (This was prior to the nomination of Roberts and Justice Samuel Alito, in 2005.) In Federal Election Commission v. Wisconsin Right-to-Life, the same 5 to 4 majority which restricted student speech in Morse struck down a provision of the 2002 federal Campaign Reform Act that subjects to federal campaign restrictions any broadcast within 30 days of an election of an ad that mentions a specific federal candidate and is targeted to a specific voting audience. Its purpose was to curtail the massive expenditure of money to influence elections by attacking a candidate through highlighting of his or her position on one issue.
