 |
Free-speech advocates see silver lining to Supreme Court decision
Organizations that filed friend-of-the-court briefs react to high court's ruling
June 27, 2007
The free-expression organizations
that filed friend-of-the-court briefs are interpreting the ruling as a narrow
exception to students' reaffirmed free-speech rights.
Chief Justice of
the United States John Roberts wrote the 5-4 decision, which held that
Juneau-Douglas High School Principal Deborah Morse did not violate student
Joseph Frederick's free-speech rights when she confiscated his sign that read
"Bong Hits 4 Jesus" during a school-sanctioned and school-supervised
event.
"Because schools may take steps to safeguard those entrusted to
their care from speech that can reasonably be 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," Roberts
wrote.
The dissent, written by Associate Justice John Paul Stevens and
joined by Associate Justices Ruth Bader Ginsburg and David Souter, warned that
"the Court does serious violence to the First Amendment in upholding —
indeed, lauding — a school's decision to punish Frederick for expressing a
view with which it disagreed."
But First Amendment advocates are relying
on Associate Justice Samuel Alito's concurring opinion, in which Associate
Justice Anthony Kennedy joined, to ensure that the restriction does not extend
to political speech. Adding Alito and Kennedy's votes to the three dissenters
creates a fragile five-justice majority for rejecting a broad school censorship
ruling.
Alito wrote that he joins the opinion of the Court only if "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 it
provides no support for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issue."
Rebecca
Zeidel, a research assistant and coalition coordinator at the National Coalition
Against Censorship, said this declaration goes a long way to ensure that the
Court's ruling is a narrow one.
"We're disappointed that Frederick lost,"
Zeidel said. "But given the outcome, we were pretty pleased by the concurring
opinion that Justices Alito and Kennedy wrote, which limited the majority
opinion by being very specific as to the kinds of restrictions school officials
can make."
Jordan Lorence, senior vice president of the Alliance Defense
Fund, a conservative free-speech advocacy group, agreed that the concurring
opinion may limit the ruling but fears administrators will ignore that
limit.
"The Alito concurrence, joined by Justice Kennedy, recognizes
the potential dangers of the majority opinion and seeks to
limit it to situations where students advocate illegal drug-use," Lorence
said in a statement from his office. "However, school officials will
undoubtedly try to expand the reach of the majority's opinion in order to censor
student speech that dissents from the official school policy."
Lorence
added that he worries this ruling could be used to justify censorship of speech
that is not drug-related.
"It's a dangerous idea that government may
censor speech based on the vague concept of 'school mission,'" he said. "Say a
school in San Francisco decided its mission was to support what they
call 'complete equality for gays and lesbians, women's health and absolute
religious diversity.' That may mean that said school could censor
pro-marriage, pro-life and pro-Christian points of view."
But Michael
Rosman, general counsel at the Center for Individual Rights, said the Court's
ruling is so narrow that schools will have a hard time applying it to other
cases.
"It would be very difficult to predict what other effects this
will have ... because I don't think the court adopted any general broad
principle that is applicable outside the specific facts of this case," he
said.
Many groups that filed friend-of-the-court briefs in support of
Morse are also focusing on Alito's opinion. Bill Ferranti, an attorney
representing organizations such as D.A.R.E. America and Drug Free America
Foundation Inc., said the Court had to balance two important interests: student
expression and student safety from drugs.
"The Court did best they
could," he said.
Ferranti said he liked Alito's opinion because it gives
principals the tools they need to battle illegal drug-use without infringing too
much on student speech. The fact that groups supporting Frederick, as well as
those supporting Morse, are emphasizing Alito's opinion "goes to show how much
everybody values free-speech issues," he added.
Although many of
Frederick's supporters are interpreting the decision narrowly, some supporters
of Morse are reading it more broadly. Francisco Negrón, general counsel
for the National School Boards Association, said in a statement that the
decision reaffirms "the school's role in regulating messages that are
detrimental to student welfare."
"The Court clearly spoke to the health
and well-being of our students, not their constitutional rights of free speech,"
Negrón said in a statement from the association.
Other school
administrators view the decision more as a guideline for principals than a
restriction for students.
Bruce Hunter, the associate executive director
of the American Association of School Administrators, said the ruling tested a
set of facts that had not been tested before: advocacy of illegal drug-use at a
school-sponsored activity off campus.
"Starting with Tinker, then
Bethel, then Hazelwood, now this one: In every case, the rules of
the road get clearer on what administrators can and cannot do," Hunter
said.
When students are approaching the line of speech not protected by
the First Amendment, principals must decide instantly whether to censor. They
must consider all case law and possible consequences, Hunter said.
"Every
bit of clarification helps," he said.
But Student Press Law Center
Executive Director Mark Goodman disagreed.
"The law was clearest when the
courts applied the single fact-based Tinker standard in determining the
legality of school officials' acts of censorship," he said. "Every subsequent
Supreme Court decision on the subject just makes things less clear. My concern
is how many more cases will it take for the exceptions of free-expression
protections to swallow up the rule?"
By Jenny Redden, 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