SCOTUS protects political speech

Today the Court refused to hear an appeal of a case that would be the first to test the latest free speech ruling. The background:

A seventh-grader from Vermont was suspended for wearing a shirt that bore images of cocaine and a martini glass — but also had messages calling President Bush a lying drunk driver who abused cocaine and marijuana, and the "chicken-hawk-in-chief" who was engaged in a "world domination tour."

After his suspension, Zachary Guiles returned to school with duct tape covering the offending images.

Williamstown Middle School Principal Kathleen Morris-Kortz said the images violated the school dress code, which prohibits clothing that promotes the use of drugs or alcohol.

An appeals court said the school had no right to censor any part of the shirt.

Alito's political speech exception was the controlling ruling. "Bong hits 4 Jesus" is unacceptable, but "Bad Bush Hits Bong" is apparently okay.

Perhaps we pessimists have reason to be a little less pessimistic. (Outright optimism is a stretch.)

No bong hits, part II

As a self-proclaimed defender of student free expression rights, I'm certainly disappointed by the Supreme Court's decision to rule against Joseph Frederick in the "Bong Hits 4 Jesus" case.

That said, I'm not exactly crestfallen, either.

The ruling is pretty narrow and seems to be focused almost exclusively on speech that promotes drug use. Justice Alito summed it up this way in his concurring opinion:

"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."

I still think the court was a little silly in thinking that any reasonable person -- yes, even teenagers -- would think that "Bong Hits 4 Jesus" means "Hey you! Go smoke pot!", but I can at least somewhat understand where it was coming from. Doesn't mean I agree with the decision, but I take comfort in knowing that the court took the time to acknowledge that this was a case about drug advocacy and not political or religious speech.

The key will be this: How broadly will administrators try to apply the decision? Although Hazelwood, at its core, is pretty vague, administrators have consistently misapplied even the most specific portions of the majority opinion and used the ruling as sweeping justification for squelching student speech.

The most troubling part for me is that the court has further extended what qualifies as "school sponsored." This was an event that took place outside of school hours and off school grounds. How will administrators and districts try and use this ruling to extend their power off campus? Will this extend to the electronic realm?

Time will only tell.

sorry, Jesus: no bong hits for you

Joseph Frederick has lost his free speech case.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

"The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."

I've already written elsewhere:

While academics might posit that meaning is a function of the text, or of the author's intent, or of a transaction between author and reader mediated via text, when it comes to this case, school administrators are essentially reader response theorists. What matters isn't what Frederick wrote, so much as what effect it would have on its readers, no matter how nonsensical the message.

Chief Justice John "Stanley Fish" Roberts, writing for the Court, essentially adopted that hermeneutic.

Update: The opinion is here [pdf].

Update II: This is how the Court's thinking has evolved over time: from "materially and substantially disrupt the work and discipline of the school" (the Tinker standard) to "inconsistent with the school's educational mission" (the ham-fisted administrator standard).

Update III: Law prof Eugene Volokh tries to understand Alito's ruling, which he sees as controlling the case.

Requa case raises interesting questions

This piece of news is almost a month old at this point, but I've been kicking it around in my head for quite a while now.

It centers around Gregory Requa, a student suspended for 40 days by the Kent School District for his involvement in the making of YouTube video that mocks one of his teachers. The suspension subsequently was upheld by a federal judge.

It's an interesting case as teachers, administrators and our courts grapple with the impact of online speech in the classroom; the pending decision on the "Bong Hits 4 Jesus" case will provide even more clarity about just how far off campus school officials can go to regulate student speech.

Requa's lawyers tried to make the claim that his suspension infringed on his First Amendment right to free speech, but the Kent School District said his suspension was only for the disruption caused in class in the making of the video: “The video depicted the conduct that was punished,” according to a district spokesperson.

Which leaves me with two questions.

1. Are they seriously trying to lead us to believe that the Kent School District always gives 40-day suspensions whenever a student makes a hand motion towards his nose (indicating his teacher smells bad), rabbit ears behind his teacher's head, and pelvic thrusting motions at her when she's not looking?
2. Do the really mean to imply that they would not have suspended Requa had the video only been footage of her cluttered class and shots of her backside, neither of which ostensibly disrupted the class?

Those of you that end up reading the blog with regularity will find that I am a ridiculously ardent defender of student free speech rights -- after all it's how Jim and I came to know each other in the first place -- and decisions such as this one scare me. The judge explained herself this way:

“The court has no difficulty in concluding that one student filming another student standing behind a teacher making ‘rabbit ears’ and pelvic thrusts in her direction, or a student filming the buttocks of a teacher as she bends over in the classroom, constitutes a material and substantial disruption to the work and discipline of the school.”

While noting that “the ability of students to critique the performance and competence of their teachers is a legitimate and important right,” Pechman said that a classroom devoid of inappropriate behavior is in the public interest.

Regarding the video, Pechman said, “The First Amendment does not extend its coverage to disruptive, in-class activity of this nature.”

While I don't disagree that having respectful and orderly classrooms is important, and I certainly wouldn't want to be the topic of a similar video, I wonder what kind of a precedent this sets for legitimate criticisms.

What if it simply had been footage of a teacher teaching poorly, interspersed with legitimate complaints about the classroom? Would the district acknowledge that with a suspension? Would Pechman strike down that suspension as unconstitutional?

Better yet, what if it had been an flier about what a terrible teacher a particular teacher is, then distributed it off school grounds. Would the district have forgiven such speech?

I seriously question whether they're punishing the speech or the medium.