 |
Experts say Alito key factor in 'Bong Hits' decision
Concurring opinions important to ruling
June 26, 2007
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 first...to 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.
By Tim Hoffine, SPLC staff
writer
© 2007 Student Press Law Center
Share
For More Information: Morse v. Frederick, No. 06-278 (U.S. June 25, 2007).
< Return to Previous Page