Experts say Alito key factor in 'Bong Hits' decision

Concurring opinions important to ruling

WASHINGTON, D.C. -- If some justices could have had their way, "Bong Hits 4 Jesus" signs might be protected student expression, while another justice might have stripped First Amendment rights from public high school students completely.

But somewhere in between, Chief Justice John Roberts' majority opinion and Samuel Alito and Anthony Kennedy's more narrowly focused concurring opinion helped find that schools do not violate a student's First Amendment free-speech rights by punishing speech that appears to promote illegal drugs at a school-sanctioned and school-supervised event.

"Because schools may take steps to safeguard those entrusted to their care from speech that can be reasonably regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick," the decision reads.

In Morse v. Frederick, the Court reversed the Ninth U.S. Circuit Court of Appeals decision by deciding that Joseph Frederick, a former student at Juneau-Douglas High School in Alaska, was not protected by the First Amendment when he held up a banner with the words “Bong Hits 4 Jesus” across the street from his school during a 2002 Olympic Torch Relay.

Alito and Kennedy, along with Justices Antonin Scalia and Clarence Thomas, concurred with Roberts' opinion, while Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter dissented. Justice Steven Breyer filed his own opinion, in which he concurred in part and partially dissented. Breyer claimed resolving whether Principal Deborah Morse could be given qualified immunity from any monetary damages first meant the Court would not have to consider the First Amendment issue.

Breyer dissented on the grounds that reviewing the constitutional question was not required. By denying Frederick's claims for monetary compensation and granting qualified immunity to Morse, there would be no need to visit potentially murky free speech claims, he said.

"It's an interesting point. He says first of all Frederick would never win damages because of qualified immunity, and I think that's right," said Ron Collins, a legal scholar at the First Amendment Center's Arlington, Va. office. "Given the facts of the case, Frederick might not even win injunctive relief, so he never reaches the constitutional question. Breyer's opinion...strikes me as reasonable, not compelling, but reasonable."

Perhaps the most important opinion, though, was the concurrence Alito wrote and Kennedy joined.

"The key opinion is the Alito opinion joined by Kennedy," Collins said. "They appear to be vigorous defenders of student expression when it involved political or religious expression. When you put their votes together with Stevens, Souter and Ginsburg, you have five votes that fortify the core holding of Tinker."

Tinker v. Des Moines Independent Community School District was a 1969 U.S. Supreme Court decision that held school officials could only limit student free expression when they could demonstrate that the expression in question would cause a material and substantial disruption of school activities or an invasion of the rights of others.

Alito's concurrence made clear his vote rested on restricting how much schools could interpret the decision to include other types of speech.

"Public schools may ban speech advocating illegal drug use," Alito wrote in his concurrence. "But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that [it] does not endorse any further extension."

Clay Calvert, the John and Ann Curley Professor of First Amendment Studies at Pennsylvania State University, said he was still "slightly shocked" by Alito's vote because he has been the author of two opinions he considers "very friendly to student speech rights."

"They make it clear this is not a case about political speech or legalization of marijuana," Calvert said.

Another approach -- dispense with Tinker

In what Calvert called "the most shocking and the most disturbing opinion," Thomas struck out at the 1969 Tinker decision, which famously declared students do not "shed their free speech rights at the schoolhouse gate."

"I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard," Thomas wrote in his concurrence. "I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so."

Thomas came out strongly against First Amendment rights for students at a time when the majority opinion took a narrower aim at student free speech protections -- and in a way no other justice has before.

"He's not the say the First Amendment does not apply to schools, but he is the first one to say the First Amendment does not apply to schools because the framers did not so intend," Collins said. Thomas said schools have traditionally played the role of a parent, which would give them the ability to regulate all student speech.

Alito rejected Thomas' stance in his concurring opinion, writing that "it is a dangerous fiction to pretend that parents simply delegate their authority -- including their authority to determine what their children may say and hear -- to public authorities."

"If there's any slight, silver lining, it's that the court did not adopt Justice Thomas' reasoning, which would scrap free speech rights of students in public schools," Calvert said.

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