Right Side of the Rainbow

BONG HITS 4 JESUS: Here’s the transcript from yesterday’s oral argument before the U.S. Supreme Court in Morse v. Frederick.

Linda Greenhouse of the New York Times filed this report, which reads in part:

A majority of the court seemed willing to create what would amount to a drug exception to students’ First Amendment rights, much as the court has in recent years permitted widespread drug testing of students, even those not personally suspected of using drugs, under a relaxed view of the Fourth Amendment prohibition against unreasonable searches.

Slate’s Dahlia Lithwick:

Oral argument in Morse v. Frederick does reveal some of the worst aspects of sharing a bong. The first being paranoia. Because according to Kenneth Starr, former righteous independent counsel — now tanned Californian law-school dean — the fate of the drug wars depends upon the unconditional school message that drugs are bad, yet schools cannot enforce that message because smartass kids keep undermining them. Starr’s alternative (and if you ask me, far more paranoia-inducing) universe: Schools get limitless discretion to craft broad “educational missions” and are then free to squelch any student speech that “undermines” them.

This from law professor Ann Althouse:

The school’s real objection is that a pro-drug message undermines the message it endorses. That is, they don’t want disagreement and debate. They still convey their anti-drug message all the time, and this student isn’t interrupting them or even distracting anyone from hearing that message. He’s just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.

Finally, from Tony Mauro at the First Amendment Center:

By the end of yesterday’s hourlong argument before the Supreme Court, two things seemed clear on both ends of the spectrum of possible outcomes.

First, the Court balked at giving schools a broad charter to censor any speech that merely falls outside the school’s educational mission. But second, the Court also seemed resolved that Principal Morse — and school officials like her in the future — should not be held personally liable for misinterpreting the welter of nuanced and conflicting Court precedents on student free speech.

Somewhere in the middle is where the Court will likely rule, with a nod toward both student speech and the need for school discipline. And the push toward center ground may come from the Court’s newest justice, Samuel Alito Jr., who in a series of questions made clear his concern about giving school officials too much power to restrict student speech. If student speech can be censored for the sole reason that it is contrary to a school’s educational mission, Alito said, schools can simply expand their mission statements to justify censoring any speech they don’t like.

My guess? The Court will (and should) reject Kenneth Starr’s argument that school officials should be more or less at liberty to punish any speech they think inconsistent with their “educational mission.” The justices will instead adopt the rule suggested by Edwin Kneedler, the Deputy Solicitor General: School officials may punish students who advocate the commission of an unlawful act.