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‘Legalize It,’ Just Don’t ‘Smoke It’

In her e-mail conversation with Walter Dellinger on, Dahlia Lithwick discusses the implications of the Morse v. Frederick case. She writes that Chief Justice John Roberts read the decision for the Morse case and the decision for Federal Election Commission v. Wisconsin Right to Life, Inc. one after the other. In between the two, she says, he included a telling segue:

First, in Morse he acknowledged that the student message on the banner was both “cryptic,” yet also clearly advocacy of a “pro-drug” message, which a school principal can properly suppress. Then he slid smoothly into WRTL by distinguishing the student speech in Morse from what he called the “core political speech” of the Wisconsin pro-life group. The point of this little editorial: The WRTL ads are serious important speech, whereas goofy student speech is not. With that as preview, it’s not hard to guess the results.

What effect will this have on the rights of college students? Unfortunately, according to Lithwick’s analysis, the Chief Justice used the same reasoning we see college administrators constantly abuse: speech that does not reach an arbitrary level of “seriousness of purpose or intent” (to borrow from Johns Hopkins President William Brody) does not deserve protection. Even though this decision deals with the speech of a high school student, I do not doubt that college administrators will adopt this reasoning to bolster acts of censorship on their campuses, a trend Samantha discusses briefly in her most recent blog.

Besides Lithwick, the Morse case has received a good amount of attention online. At Reason’s Hit & Run blog, Jacob Sullum questions how much political speech about drug legalization has lost protection because of this decision. FIRE’s former president David French also discussed the decision on National Review’s Phi Beta Cons blog. He writes that since the “BONG HiTS 4 JESUS” banner did not cause a disruption, the speech should not have been restricted. The Volokh Conspiracy blog has a bunch of posts about the Morse case, most focusing on the effect the decision will have on the speech of K-12 students. John Tabin, writing for The American Spectator, questions the line that the justices seem compelled to draw between speech advocating an illegal activity (“Smoke Marijuana”) and political speech (“Legalize Marijuana”).

The existence of, or at least the search for, this line, where speech becomes “political” or “serious,” leads to arbitrary and dangerous restrictions on speech by those in power. Let’s hope this standard isn’t so ingrained in the minds of high school students that their college days are filled more with trying to avoid the unpredictable line than with having robust and productive conversations.

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