By Mike Hiestand
First they went after sex. Now it’s drugs. Student speech about Rock n’ Roll must understandably be quaking in its boots.
As you’ve no doubt heard by now – because who can possibly resist a headline that touts “Bong Hits,” “Jesus” and the “Supreme Court” in the same sentence? – in a 5-4 decision the Court ruled June 25 that Deborah Morse, principal at Juneau-Douglas High School in Juneau, Alaska, acted appropriately five years ago when, as the Olympic torch passed through town, she crossed the street in front of the school and ripped down the “Bong Hits 4 Jesus” banner being held up on an off-campus, public sidewalk by then 18-year-old JDHS senior Joseph Frederick.
As it did in 1986 when it carved out a First Amendment exception for sexually “lewd and indecent” speech, the Court has now created another topic that’s off-limits to high school students: speech during a “school-sanctioned” and “school-supervised” event that is perceived as advocating illegal drug use.
The Court’s opinion raises a number of potentially troubling questions: First, what exactly is a “school-sanctioned” and “school-supervised” event? Can the school assume control over otherwise private student speech simply by determining – on its own – to “sanction” an event (even if that event didn’t ask to be “sanctioned” in the first place)? Second, how does one determine whether a message “advocates” illegal drug use? (I don’t know, but the message “Bong Hits 4 Jesus” has always struck me as just plain silly. Apparently, the bar for speech that “advocates” drug use is pretty low.) Finally, a (slim) majority of the Court has embraced the idea that carving out piecemeal, topic-based exceptions to what is protected student speech is okay, which, of course, begs the question “what topic is next?”
Such important questions aside, however, the ruling does include a tremendously important silver lining that, in the end, may be more helpful to students than the harm done by a hopefully narrow prohibition on speech that advocates illegal drug use. I predict one line, in particular, from Justice Alito’s pivotal concurring opinion will be cited by free speech proponents (and hopefully courts) in nearly every student speech case for decades to come:
“[This decision] provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”
In other words, “school-sanctioned” and “school-supervised” student speech that includes a political or social component – speech that is at the core of what the First Amendment was meant to protect – cannot be censored by school officials absent some other legally justified reason (for example, the speech is libelous or obscene.) Indeed, had Frederick held up a banner (or presumably passed out flyers or an independent newspaper, created a private website or worn a T-shirt) that simply said “Legalize Marijuana” rather than the nonsensical gibberish he chose, the First Amendment would have protected it and, under this Court’s reasoning, he would have won his case.
Such a clear pronouncement from the United States Supreme Court recognizing the importance of protecting the right of students to freely discuss issues of political and/or social significance has been all too rare as of late and Justice Alito’s words appears to put student First Amendment rights on firmer footing than that provided by some recent lower court rulings. Of course, we’ll have to wait and see.
In the meantime, it is important that students who want to speak out on political or social issues do so in a thoughtful and direct manner. Don’t be cutesy. “Bong Hits 4 Jesus” -type banners may attract a lot of attention – but they also may leave the door open to administrative censorship.
If you want your voice to be heard (and legally protected) on a important issue of the day, just make sure you speak plainly – unless you want to talk about Rock ‘n Roll – then you should probably also speak quickly. The clock may be ticking on that one.