IN WAR ON DRUGS, FREE SPEECH IS A CASUALTY

In its 1969 Tinker decision, the U.S. Supreme Court ruled that an Iowa
public school could not expel students who wore black armbands to
protest the Vietnam War because students do not "shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate." On Monday, the Supreme Court issued a muddled
ruling that restricts those rights, even outside the schoolhouse gate.

The story begins in January 2002. An Alaska high school student
attending a Winter Olympics Torch Relay on a Juneau sidewalk unfurled
a banner that read, "Bong Hits 4 Jesus." Joseph Frederick hoped that
prank would land him on TV news.

Because the school had sanctioned the event, Juneau-Douglas High
School principal Deborah Morse confiscated the banner and suspended
Frederick.

Frederick sued. A lower court ruled in Morse's favor. The 9th U.S.
Circuit Court of Appeals ruled in Frederick's favor. On Monday, the
Supreme Court issued a ruling in the school's favor. As Chief Justice
John Roberts wrote, when Morse saw the banner, it was "reasonable" for
her "to conclude that the banner promoted illegal drug use - in
violation of school policy - and that failing to act would send a
powerful message to the students in her charge, including Frederick,
about how serious the school was about the dangers of illegal drug
use. The First Amendment does not require schools to tolerate at
school events student expression that contributes to those dangers."

So the court ruled that public schools have a right to censor
opposition to the war on drugs, even as it has upheld the right of
students to oppose military wars.

I understand why the big bench would want to side with Morse. She was
trying to do her job - even if she was heavy-handed. Frederick comes
across as a disrespectful cut-up.

But to rule that schools can suppress ideas officials don't like -
well, who knows where that will end?

As Justice Stephen Breyer suggested in a concurring and dissenting
opinion, the Morse decision "could in fact authorize further
viewpoint-based restrictions." A principal might argue that the
pro-bong banner hurts the school's educational mission, Breyer noted,
but what if a student suggests that a glaucoma sufferer could relieve
pain by smoking marijuana? That's not clear.

It would be more consistent, Justice Clarence Thomas wrote in a
concurring opinion, to stipulate that "the Constitution does not
afford students a right to free speech in public schools."

Thomas cited Justice Hugo Black's dissent on the 1969 Tinker armband
decision: "Taxpayers send children to school on the premise that at
their age they need to learn, not teach."

"I am afraid that our jurisprudence now says that students have a
right to speak in schools except when they don't, " Thomas wrote.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsberg, made
the same point: "The Court's test invites stark viewpoint
discrimination."

But also, "Carving out pro-drug speech for uniquely harsh treatment
finds no support in our case law and is inimical to the values
protected by the First Amendment."

I especially appreciated that Stevens punctured Roberts' apparent
belief that Frederick's prank might lead to dangerous behavior. For
Juneau-Douglas High School to argue that Frederick's banner undermined
its education mission, Stevens wrote, the school must show "that
Frederick's supposed advocacy stands a meaningful chance of making
otherwise-abstemious students try marijuana."

And: "The notion that the message on this banner would actually
persuade either the average student or even the dumbest one to change
his or her behavior is most implausible."

In the war on drugs, common sense is the first casualty.