Free Speech and Selective Originalism
Today’s “Bong Hits 4 Jesus” case actually turns on relatively narrow grounds. The problem with Roberts’ opinion is that it turns on a claim that punishing the student was justified because the banner was seriously advocating drug use. As Stevens points out, though, this isn’t very plausible:
I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.
… I take the Court’s point that the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.” But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.
In this case, however, I am happy about Alito and Kennedy concurring to narrow the scope of the opinion, emphasizing that Tinker is being upheld and that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.” I still find the application to be puzzling–couldn’t a principal, under this standard, “reasonably” conclude that a “legalaize drugs now!” poster “promotes” drug use?–but in this case better it be a misapplication of an acceptable principle.
Thomas, meanwhile (and, interestingly, without a join from Scalia) wrote a concurrence arguing that the landmark student speech case Tinker v. Des Moines should be overturned and schools be given the essentially unlimited power to censor student speech on (plausible, it must be said) originalist grounds. Oddly, however, in joining Scalia’s concurrence in another case today arguing that virtually all campaign finance laws are unconstitutional, neither of the Court’s two “originalists” managed as far as I can tell to muster a shred of evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation. Nor did Thomas’s dissent in McConnell contain a historical analysis of the original understanding of the First Amendment, although it does cite any number of libertarian 20th century precedents that would seem erroneous under a strictly originalist standard. Hmm, and the ability of wealthy people and corporations to give and spend money for political purposes is enormously important to the modern Republican Party and protecting the free speech of students who if you squint really hard can be vaguely construed as encouraging drug use is not. What an amazing coinky-dink!