The Supreme Court further eroded high school students’ free speech rights yesterday when it held in Morse v. Frederick that a public high school was within its rights to suspend a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. Over the years, various federal court decisions have eaten away at high school students’ free speech rights. Regrettably, some of those decisions have led to reductions in college students’ free speech rights as well. For example, the Supreme Court’s decision about high school students’ rights in Hazelwood v. Kuhlmeier led to the Seventh Circuit’s decision about college students’ rights in Hosty v. Carter.
There is much to discuss about the Morse decision, and this is the first in a series of commentaries on the case that will appear here on The Torch. For now, I want to focus on what I consider to be the most troubling piece of the opinion, the piece that I think is likely to have the broadest-based and most lasting impact on free speech rights. The Court wrote that:
We discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
As an initial matter, I think it is quite a stretch to say that the phrase “BONG HiTS 4 JESUS” actually even celebrates—let alone advocates—illegal drug use, but for the sake of this discussion let’s assume that it does. To date, relevant Supreme Court jurisprudence has drawn precisely the distinction the Court rejected yesterday—the distinction between celebration and outright advocacy. In Hess v. Indiana, the Court considered whether Gregory Hess’ statement to a crowd of 150 protestors that “we’ll take the fucking street later” constituted unprotected incitement or protected speech. The Court held that because Hess used the term “later,” his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.” The Court continued that “[t]his is not sufficient to permit the State to punish Hess’ speech. Under our decisions, ‘the constitutional guarantees of free speech and free press do not permit a State to forbid…law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’” (Emphasis in original.)
Now it seems that, at least in schools, merely “celebrating” a violation of the law can legitimately be punished—a serious departure from the Court’s clear language in earlier cases. And if the Court is willing to eviscerate this distinction when it comes to the promotion of marijuana use, I suspect that a bad decision in the realm of inciting violence is not far behind. While some of you might be asking what is wrong with prohibiting the celebration of drug use and violence, understand that creating such an amorphous exception to free speech will have consequences far beyond its seemingly narrow application. Things like incitement and fighting words are proscribable not because of their content, but because of the immediate physical actions they are likely to produce. By allowing the proscription of words simply because they take a positive view of illegal action generally, the Court has stepped over a dangerous threshold. “Celebrating” is a vague term that means different things to different people, and allowing schools to make such clearly content-based decisions irrespective of whether actual disruption is likely to occur does serious damage to the right to free speech.
As I said earlier, there will be much more to come here on The Torch about this decision. Check back frequently for more commentary.