No Hangover After “Bong Hits”

Digested for Litigation News

With the exception of cases involving speech promoting illegal activity and threats of violence, the Supreme Court’s June 2007 ruling in the “Bong Hits 4 Jesus” case does not appear to have materially altered the landscape for cases involving student free speech claims. Although numerous courts have cited Morse in the last 10 months, it appears courts have left other aspects of student speech rights largely untouched.

Morse has not disturbed the base analysis: A student continues to have the burden of showing that the First Amendment applies. If the student meets that burden, the school has the burden of justifying its impingement on the student’s speech

“Threats of Violence” Speech at Risk

At a high level, threats of violence are not likely to be viewed as protected speech, at least not according to courts in the Eleventh, Second, or Fifth Circuits. Juvenile name calling on social networking sites, wearing protest buttons or armbands, or distributing flyers in protest of school uniform policies, and placement of flyers promoting unpopular political viewpoints are likely acceptable “free speech” within the school environment.

Tinker Still the Touchstone

The Tinker standard—that the speech exercised does not lead “school authorities to forecast substantial disruption of or material interference with school activities”—remains the touchstone. Tinker v. Des Moines Indep. Cmty. School Dist., 393 U.S. 503, 514 (1969).

Alito’s Concurrence Persuasive

In fact, lower courts appear to favor Justice Alito’s limiting concurrence when analyzing Morse. He has been cited for the proposition that “Morse does not permit school officials unfettered latitude to censor student speech under the rubric of ‘interference with the educational mission’ because that term can be easily manipulated.”

Courts also pay heed to Alito’s caution that Morse “(a) . . . 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 (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’” They appear to use this caution as the springboard to analyze cases under earlier student speech decisions such as Tinker.

The five separate opinions in Morse demonstrate its complexity, running the gamut from Justice Thomas’s concurrence advocating overruling Tinker on the grounds that the First Amendment is inapplicable in public schools, to the Stevens/Souter/Ginsburg dissent characterizing the ruling as a slippery slope down which First Amendment freedoms in a school setting may slide.