Even days after the opinion was handed down, it is difficult to know where to begin in dissecting the potential harm of the Morse v. Frederick opinion. One thing is clear to me, however: there is a word missing from the opinion that could have helped re-focus and clarify the case and might have helped convince the Court to avoid its risky adventure into new viewpoint-based restrictions on speech. That word is “joke.”
While not a legal term of art, actually recognizing that the phrase “BONG HiTS 4 JESUS” was a joke—whether funny or not—might have highlighted what courts have otherwise long understood: scrutinizing the meaning of a joke to decide whether or not it should be protected is a bad idea. In Morse, the decision to root out the meaning of a joke lead to some of the stranger analyses I have seen in modern Supreme Court jurisprudence. As Chief Justice Roberts wrote:
At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits…”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits” —and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
As Dahlia Lithwick cogently criticized: “When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say ‘bong hits [will kill you].’”
Every section of the fractured opinion struggles in grave and serious terms with what to call the phrase “BONG HiTS 4 JESUS.” Roberts takes note of this in defending his own interpretation:
The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is .meaningless and funny. The dissent similarly refers to the signs message as “curious,” “ambiguous,” “nonsense,” “ridiculous,” “obscure,” “silly,” “quixotic,” and “stupid.” Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.
Roberts seems downright contemptuous of the idea that the phrase could simply be “meaningless and funny,” preferring instead to treat this more like an outright exhortation to go smoke marijuana. Generally, courts have been wisely hesitant to search for the secret meaning of speech for many different reasons—not the least of which is that allowing for such value judgments gives courts the all-too-tempting power to punish ideas with which they disagree. It is far wiser for courts to, as the Supreme Court has said in the past, “avoid these ends by avoiding these beginnings.” Of course, Justice Alito seems to have tried to make this new exception to the free speech rights of high school students as narrow as possible, but given the subjectivity of the analysis, the decision still seems to dangerously revive the old ”bad tendency test.” As the First Amendment Center explains, the “bad tendency test” came out of a 1907 Supreme Court decision and “stood for the proposition that the government could restrict speech that would have the tendency to cause or incite illegal activity.” The test was eventually abandoned in no small part because its amorphous logic could be used to ban wide swathes of discussion on virtually any crucial topic.
If the Court wished to allow to Morse to punish the student, it could have figured out any number of ways to do so that would not have opened the door to further viewpoint-based exceptions to free speech. And if the justices had taken a deep breath and asked themselves “do we really want to open up this can of worms in order to punish a lame joke?” maybe this tortured opinion could have been avoided.
So, readers might be wondering what this high school case has to do with FIRE’s mission, which explicitly deals only with higher education and not with high schools. Samantha, Eugene Volokh, and David French have already tackled some of the implications for collegiate speech in previous posts, but tune in Monday if you’d like to read what I see as the likely ramifications of Morse v. Frederick for free speech on campus.