Bench Memos

Making Hash in the Bong Hits Case

Over at Phi Beta Cons, the estimable free-speech litigator David French is concerned about the possible spillover effect on universities of today’s ruling in Morse v. Frederick, the high-school student “bong hits” banner case, decided 5-4 against the student and for the school principal who suspended him.

I’m not so sure as David is that the Court cannot distinguish in future between the free-speech rights that obtain in high schools and those that ought to prevail on college campuses (and there I would distinguish between students and faculty–naturally, being faculty myself!).  But on the merits of the Morse case itself, I just don’t share David’s concern.  Calling high-school students the “canaries in the coal mine for our basic civil liberties,” he writes that the ruling “dramatically expands the scope of state authority over the speech of school children.”

Would that it were so.  In truth, the decision today, correct enough in its result for the case at hand, is just an invitation to more litigation of the kind that has been the bane of school administrators for the four decades since the wrongheaded Tinker decision of 1968.  Justice Clarence Thomas, concurring alone, has the only view of the matter to which I would fully subscribe:

I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.

And he’s got the historical analysis to back it up.  I would only add that in a saner world either 1) young Master Frederick’s parents would have given him a whipping, not hired an attorney who sued the school principal, or 2) the Fredericks would have lost the case at every stage, with certiorari denied without comment by the Supreme Court for such a timewaster as this.  Only the japery of the good old Ninth Circuit brought the case this far.


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