June 25, 2007

Is Tinker Dead?

That is the question that springs to mind in the aftermath of today’s decision in the “Bong Hits 4 Jesus” case. In allowing a public school to punish a student who unfurled a banner off school grounds based upon a perceived violation of the school’s policy against permitting advocacy of drug use, that is a reasonable question. Does Tinker v. DesMoines, the seminal case dealing with student First Amendment rights, survive this decision?

The U.S. Supreme Court ruled Monday that students can face limits on their rights to free speech.

Schools can rein in students' speech if it can be interpreted as promoting illegal drug use, Chief Justice John Roberts wrote in the court's opinion.

The case stemmed from an incident in January 2002 in which a crowd of students, townspeople and teachers gathered on a public street in Alaska across from a high school to watch the Olympic torch relay pass in front of them as part of a parade in support of the upcoming Winter Olympic Games.

Student Joseph Frederick wanted to make a statement about his First Amendment rights in front of the television crews covering the event. As the crowd thickened, he unfurled a banner with the message "Bong Hits 4 Jesus."

Frederick had been bothered in his senior year by the lack of attention to the issue of freedom of speech in the United States, and at his school in particular.

In briefs, Frederick argued that he was only trying to assert his rights and that the message was not an attempt to "spread any idea."

Now the opinion in the case is not yet up on the SCOTUS website, so I have not had a chance to read it yet. However, it might be that last little admission that made the difference. I wonder if a banner reading “Legalize Pot” and displaying the logo of NORML (National Organization for the Repeal of Marijuana Laws) might not have resulted in a different decision, given that it would have clearly been express advocacy on a public policy issue.

On the other hand, we have repeatedly seen a trend in recent years towards allowing public schools to ban even serious speech of a political and religious nature on the grounds of “offensiveness”. In practice, this has meant that schools have repeatedly been permitted to censor speech opposing legal abortion and questioning the morality of homosexuality, not to mention objecting to affirmative action programs. The basis for such bans have been policies against racial, sexual, and sexual orientation harassment and the desire of the school to promote an unambiguous message of inclusion (of everybody except those who dissent from the officials position on these contentious public policy issues).

As a result, this case leaves me very worried. Tinker held that students do not surrender their civil liberties at the schoolhouse gate. Could it be that we are reaching the point that students do, in fact, require that students surrender those liberties? Rather than recognizing (as in West Virginia v. Barnette in 1943) that no public official, high or petty, shall define what the orthodox and acceptable opinions shall be held and expressed, we are going to permit school boards and their employees to determine what speech on matters of public importance shall be considered acceptable?

Perhaps most importantly, this decision leaves me a very basic question – how does one prepare students to exercise their full rights as citizens of a free society in an educational setting where their civil liberties are regularly suppressed and their exercise punished? Are we instead educating them to be serfs or subjects rather than free men and women?

UPDATE: No sooner do I post this than the slip opinion in Morse v. Frederick appears on the SCOTUS site.

UPDATE II: Having read the opinion, it is clear that the holding of the court is that the War on Drugs overrides the First Amendment -- at least if you are a student at school. -- because Congress has declared anti-drug education to be a compelling government interest. This is not good.

UPDATE III: Justice Thomas, in his concurring opinion, indicates that he would overturn Tinker completely because it is not grounded in the Constitution. I guess he doesn't believe in the word "no law" in the First Amendment. This is particularly troubling due to the requirement that students attend school -- therefore resulting in the government mandating that the spend a part of the day in a setting in which their constitutional rights would be suspended.

UPDATE IV: Alito and Kennedy concur together in order to specifically affirm the central holding in Tinker.

JUSTICE ALITO, with whom JUSTICE KENNEDY joins, concurring.

I join the opinion of the Court on the understanding that (a) 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 (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (STEVENS, J., dissenting).

They support Tinker, but still support what Justice Thomas calls an "ad hoc exception" to that case's central holding.

UPDATE V: Justice Breyer would have avoided the First Amendment question entirely and instead held for "qualified immunity" imposing a prohibition on the suit.

UPDATE VI: Fantastic dissent by Justice Stevens (joined by Justices Ginsburg and Souter) defends Tinker and points out that this case establishes a First Amendment exception previously rejected in American jurisprudence -- namely that mere advocacy of illegal behavior, absent an actual threat of imminent lawlessness, can be suppressed and punished.

Having read the opinions, I expect that the holding in this case will be used to justify the continued suppression of speech by religious and conservative students on issues like abortion, gay rights, and affirmative action, with schools arguing that the student speech on those matters undermines the mission of the school by contradicting the school policy on the matter. This will effectively further the notion that schools are indoctrination centers, not educational institutions.

MORE AT A Blog For All, Phi Beta Cons, Betsy's Page, Hot Air, Volokh Conspiracy, Stop the ACLU (Twice), Reason's Hit & Run, ProfsBlawg, Althouse, SCOTUS Blog (Twice)

OPEN TRACKBACKING AT Right Pundits, Perri Nelson's Website, Committees of Correspondence, DeMediacratic Nation, Jeanette's Celebrity Corner, Big Dog's Weblog, Maggie's Notebook, DragonLady's World, Stuck On Stupid, The Bullwinkle Blog, The Amboy Times, Conservative Cat, Pursuing Holiness, third world county, The World According to Carl, Pirate's Cove, High Desert Wanderer, Right Voices, and The Yankee Sailor, thanks to Linkfest Haven Deluxe.

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"How does one prepare students to exercise their full rights as citizens of a free society in an educational setting where their civil liberties are regularly suppressed and their exercise punished? Are we instead educating them to be serfs or subjects rather than free men and women?"

Sadly, the answer seems to be yes.

|| Posted by bob, June 26, 2007 08:23 AM ||

This does make it sound very much like Tinker is dead, no matter what the concurrent opinion said. This seems to me even more restrictive on speech -- Tinker protected speech inside the school. This says speech on public property outside of school is not protected.

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