A former high school student has lost his case in what is the US Supreme Court's first major ruling on students' free speech rights in almost 20 years.
This is a terrible decision.
1) The student was not on school property at the time.
2) The banner "Bong Hits 4 Jesus" is obviously humor.
3) The students property was destroyed with no compensation.
4) The decision is based on the fact that illegal drug use is illegal by definition, and therefore promotion of such is not protected speech.
So, what if the banner had read "I support Medical Marijuana" instead? What if it said "I support late term abortions" and was displayed off-campus at a planned parenthood rally - would that also be speech the school can legally suppress?
According to the Supreme Court, in a word, yes.
These are your right folks, slipping away...
I'm not terribly troubled by the basic conclusions in this decision. There are two primary facets to this. The first is the question of whether or not this is protected speech at school, and the second is whether or not this occurred at school.
As for the first question, students at school do not have first amendment rights that are as broad as they are in other situations. Their first amendment rights are balanced against other government interests (in this case the ability to run an orderly educational environment). So, while on the one hand student expression which is critical of administration policy is likely to be protected, a tshirt with a picture of the principal with horns drawn on his head, merely intended to be funny, might not be protected. The court concluded that "bong hits for jesus" was merely intended to be funny, and was, further, intended to be disruptive, and decided that it falls in the later category and not the former. This seems reasonable to me and its not a watershed event in terms of student first amendment rights.
A banner reading "I support medicinal marijuana" could not be supressed by the school under this ruling.
The second question about whether or not this occured "at school" is a bit more difficult. The student skipped school but showed up at the exact same location as a school field trip, knowing the other students would be there and intending them to see his sign. Its a fine line. If the student had set up the banner far away from the other school students it might have tilted the other way.
I haven't really looked at the legal issues regarding the destruction of the banner. Most of the legal discussion about this case does not seem to hinge around that question.
I am, however, troubled by Thomas's concurrence, which speaks favorably of a 1915 decision which upheld the punishment of students for speaking out about their school's lack of fire safety. Thomas's originalism is often a helpful lens for understanding a Constitutional question, but this is a perfect example of how it can lead to radical conclusions that are totally out of touch with our society.