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MORSE v. FREDERICK

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
MORSE v. FREDERICK, the so-called "BONG HiTS 4 JESUS" case. Joseph Frederick, a high school student, was suspended for displaying a banner bearing that peculiar message across the street from his school as the Olympic Torch passed by in 2002, on the grounds that promoting illegal drug use is against school policy. Frederick sued, alleging a First Amendment violation.

In 1969, the Court ruled in Tinker v. Des Moines that students had engaged in protected speech when they came to school wearing armbands in protest of the Vietnam War. Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Justice Abe Fortas wrote for the majority. But the Court has also ruled that kids in school do not have the same rights as adults, and the current Court, once again led by Roberts, ruled against Frederick on the grounds that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."

Justice Thomas, who joined the majority, takes the simple position that high school students have no First Amendment rights -- that is, that Tinker should be overturned. He makes a historically grounded originalist argument that public schools have an in loco parentis role that gives them the absolute right to regulate student conduct. Thomas's position is cogent, but its implications are far-reaching. While Thomas says in a footnote that his analysis applies only to elementary and secondary schools, it's naive to think that colleges and universities won't defend (for example) restrictive speech codes by claiming an expansive in loco parentis role as well. "In every single free speech case I've ever argued," frets David French, who advocates for Christian students at the Alliance Defense Fund's Center for Academic Freedom, "the university's first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder."

In any case, Thomas is alone in his willingness to reconsider Tinker. And if high school students do have a right to free speech, carving out an exception for "promoting illegal drug use" (Roberts's words) is problematic at best.

Justice Alito filed a concurring opinion to note that he joins the majority opinion only
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 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 "the wisdom of the war on drugs or of legalizing marijuana for medicinal use." [This quotation comes from the dissent by Justice John Paul Stevens.]
In other words, Alito emphasizes that in a high school context, a T-shirt that says "Legalize Marijuana" is protected speech, while a T-shirt that says "Smoke Marijuana" is not. This is a well-meaning but ultimately unsatisfactory distinction. Imagine the same distinction being drawn outside the context of drug use. By this standard, a T-shirt that says "Don't Pay Taxes" warrants less protection than one that says "Abolish the IRS." Breaking the law, after all, in some contexts constitutes civil disobedience, and encouraging civil disobedience -- even of the quixotic and counterproductive variety (both open drug use and tax evasion fall into that category) -- is well within the scope of political speech.

Again, this is all irrelevant if Thomas is right and public schools may restrict student speech however they see fit. But since the majority won't adopt that view, they are instead embracing a role as ultimate arbiter between principal and student. You can bet that the "Legalize"/"Smoke" distinction will be tested in court at some point.

THESE CASES HIGHLIGHT the minimalist temperament of George W. Bush's appointees. Roberts and Alito both show a preference for narrow rulings over broad rulings. This approach has its advantages; incremental changes are more easily digested by the body politic, and thus create less backlash in the political arena. But the downside is plain: Such incrementalism kicks issues forward to be dealt with in a future round of judicial review. Paradoxically, the reluctance to exercise judicial power broadly can, in long run, actually expand the role that judges have in setting policy.

John Tabin is a frequent online contributor to The American Spectator and AmSpecBlog.



News Hawk- User 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The American Spectator
Author: John Tabin
Contact: JohnTabin.com
Copyright: The American Spectator
Website: The American Spectator
 
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