There is an old saying in the legal profession: “bad facts make bad law.” Well, that is exactly what happened today in the Supreme Court. In a divided decision, the Court (with Chief Justice Roberts writing for the majority) decided that a school principal could punish a student who unfurled a banner reading “Bong Hits for Jesus” outside the school even though there was zero evidence that the silly banner created any form of disruption.
This has always been a particularly dangerous case for student speech. The banner in question is stupid and nonsensical at best and advocates illegal activity at worst. In other words, it’s not the kind of speech that has any real value to anyone on either side of a meaningful political or religious debate. Moreover, since the speech deals with drug use (an undeniable evil and tragedy), it has even fewer defenders. Yet that is often the nature of free speech work: kooks and kids (and sometimes both) serve as the canaries in the coal mine for our basic civil liberties.At first glance, the case is supremely narrow and seems to stand for a proposition that most likely would command wide public support: Speech advocating illegal drugs is particularly bad and can be banned by administrators — especially since those administrators are often under federal mandates to advance a message that clearly and unequivocally condemns drug use. The problem, however, lies with the reasoning that permits the Court to prohibit the speech even though it was non-disruptive, not obscene, and not school-sponsored (the three traditional areas of authority over student speech). The Court basically holds that schools can restrict speech about drugs because drugs are really harmful and really illegal. All of this is no doubt true, but here’s the rub: Virtually all restrictive speech policies (including over-broad anti-harassment rules or anti-bullying policies that are often used to shut down religious speech on political or sexual issues) are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations. All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics. Advocating illegal activity? Administrators justify censoring tee-shirts or other forms of speech by reference to state anti-discrimination statutes, anti-bullying regulations, and hate crimes laws all the time. What about impairing the cognitive or psychological development of young people? If you don’t think schools can’t trot out literally hundreds of psychiatrists who would argue that moral disapproval impairs the development of young people engaged in various forms of sexual activity, then I have a particularly nice bridge I’d like to sell you. It’s big and spans the East River. At its base, this opinion dramatically expands the scope of state authority over the speech of school children. Tie the speech in question to any form of “advocacy of illegal behavior,” and the student will face long odds, even if his or her speech was non-disruptive, not school-sponsored, and not profane. If the speech contradicts a message that state or federal officials require schools to advance, then the odds grow even longer. If the school caps it off by trotting out some mental health care specialists who talk about the “profound harm” to delicate young minds or the risk of violence caused by the dissenting speech, then you might as well start drafting your appeal. And what does this all have to do with universities, you ask? In every single free speech case I’ve ever argued, the university’s first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder. In fact, I would be surprised if the “Bong Hits” case is not raised in at least two pending Alliance Defense Fund university speech cases. We shall see if the courts will continue to distinguish between secondary school and universities — especially in the face of serious institutional pressure to blur the differences.