WASHINGTON, D.C. — Many of the nation’s free-speech advocates are focusing on what they call the silver lining to Monday’s U.S. Supreme Court ruling in Morse v. Frederick.
The free-expression organizations that filed friend-of-the-court briefs are interpreting the ruling as a narrow exception to students’ reaffirmed free-speech rights.
Chief Justice of the United States John Roberts wrote the 5-4 decision, which held that Juneau-Douglas High School Principal Deborah Morse did not violate student Joseph Frederick’s free-speech rights when she confiscated his sign that read “Bong Hits 4 Jesus” during a school-sanctioned and school-supervised event.
“Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick,” Roberts wrote.
The dissent, written by Associate Justice John Paul Stevens and joined by Associate Justices Ruth Bader Ginsburg and David Souter, warned that “the Court does serious violence to the First Amendment in upholding — indeed, lauding — a school’s decision to punish Frederick for expressing a view with which it disagreed.”
But First Amendment advocates are relying on Associate Justice Samuel Alito’s concurring opinion, in which Associate Justice Anthony Kennedy joined, to ensure that the restriction does not extend to political speech. Adding Alito and Kennedy’s votes to the three dissenters creates a fragile five-justice majority for rejecting a broad school censorship ruling.
Alito wrote that he joins the opinion of the Court only if “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 it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”
Rebecca Zeidel, a research assistant and coalition coordinator at the National Coalition Against Censorship, said this declaration goes a long way to ensure that the Court’s ruling is a narrow one.
“We’re disappointed that Frederick lost,” Zeidel said. “But given the outcome, we were pretty pleased by the concurring opinion that Justices Alito and Kennedy wrote, which limited the majority opinion by being very specific as to the kinds of restrictions school officials can make.”
Jordan Lorence, senior vice president of the Alliance Defense Fund, a conservative free-speech advocacy group, agreed that the concurring opinion may limit the ruling but fears administrators will ignore that limit.
“The Alito concurrence, joined by Justice Kennedy, recognizes the potential dangers of the majority opinion and seeks to limit it to situations where students advocate illegal drug-use,” Lorence said in a statement from his office. “However, school officials will undoubtedly try to expand the reach of the majority’s opinion in order to censor student speech that dissents from the official school policy.”
Lorence added that he worries this ruling could be used to justify censorship of speech that is not drug-related.
“It’s a dangerous idea that government may censor speech based on the vague concept of ‘school mission,'” he said. “Say a school in San Francisco decided its mission was to support what they call ‘complete equality for gays and lesbians, women’s health and absolute religious diversity.’ That may mean that said school could censor pro-marriage, pro-life and pro-Christian points of view.”
But Michael Rosman, general counsel at the Center for Individual Rights, said the Court’s ruling is so narrow that schools will have a hard time applying it to other cases.
“It would be very difficult to predict what other effects this will have … because I don’t think the court adopted any general broad principle that is applicable outside the specific facts of this case,” he said.
Many groups that filed friend-of-the-court briefs in support of Morse are also focusing on Alito’s opinion. Bill Ferranti, an attorney representing organizations such as D.A.R.E. America and Drug Free America Foundation Inc., said the Court had to balance two important interests: student expression and student safety from drugs.
“The Court did best they could,” he said.
Ferranti said he liked Alito’s opinion because it gives principals the tools they need to battle illegal drug-use without infringing too much on student speech. The fact that groups supporting Frederick, as well as those supporting Morse, are emphasizing Alito’s opinion “goes to show how much everybody values free-speech issues,” he added.
Although many of Frederick’s supporters are interpreting the decision narrowly, some supporters of Morse are reading it more broadly. Francisco Negrùn, general counsel for the National School Boards Association, said in a statement that the decision reaffirms “the school’s role in regulating messages that are detrimental to student welfare.”
“The Court clearly spoke to the health and well-being of our students, not their constitutional rights of free speech,” Negrùn said in a statement from the association.
Other school administrators view the decision more as a guideline for principals than a restriction for students.
Bruce Hunter, the associate executive director of the American Association of School Administrators, said the ruling tested a set of facts that had not been tested before: advocacy of illegal drug-use at a school-sponsored activity off campus.
“Starting with Tinker, then Bethel, then Hazelwood, now this one: In every case, the rules of the road get clearer on what administrators can and cannot do,” Hunter said.
When students are approaching the line of speech not protected by the First Amendment, principals must decide instantly whether to censor. They must consider all case law and possible consequences, Hunter said.
“Every bit of clarification helps,” he said.
But Student Press Law Center Executive Director Mark Goodman disagreed.
“The law was clearest when the courts applied the single fact-based Tinker standard in determining the legality of school officials’ acts of censorship,” he said. “Every subsequent Supreme Court decision on the subject just makes things less clear. My concern is how many more cases will it take for the exceptions of free-expression protections to swallow up the rule?”