War on Drugs Now Trumps First Amendment
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Here are my hasty stitches on today's ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case).
--Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker's* (or any other case's) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time. The facts that Frederick skipped school that day and that the event was off school grounds only exacerbate the absurdity of Chief Justice Roberts' reasoning. (UPDATE: Thomas dismisses this pesky fact as "inconsequential" in a footnote.)
--The gist of Roberts' opinion seems to be that "fighting drug use" is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message). If that (terrifying) assertion is the case, then it is certainly also the case that, when the issue of ubiquitous random drug testing of students finally reaches the Supreme Court, it will scrap the whole Vernonia**/Earls*** paradigm requiring at least some pretense of a special need (e.g., "athletes on drugs get injured, so we must test athletes") and simply allow unlimited suspicionless drug testing of students in any and all situations. If the drug war, to this Court, trumps the First Amendment, then surely it also trumps the Fourth Amendment. It's a slam dunk.
--Alito's concurrence, meanwhile, posits that no reasonable person could infer a political statement behind the term "Bong Hits 4 Jesus." That's a mighty bold pronouncement — and not one that suggests a philosophy of judicial restraint (as in "the opposite of judicial activism").
--Be sure to read Thomas' concurrence, which argues that students (again, apparently including adult students) have no First Amendment rights, period. Never, no way, no how. Remind me again why libertarians like him?
The case is Morse v. Frederick, No. 06-278 (June 25, 2007) (PDF - 60 pages).
More thoughts at Zero Boss, SCOTUSblog, Quizlaw.
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*Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)
**Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
***Board of Education of Pottawatomie County v. Earls, 536 U.S. 822 (2002)
--Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker's* (or any other case's) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time. The facts that Frederick skipped school that day and that the event was off school grounds only exacerbate the absurdity of Chief Justice Roberts' reasoning. (UPDATE: Thomas dismisses this pesky fact as "inconsequential" in a footnote.)
--The gist of Roberts' opinion seems to be that "fighting drug use" is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message). If that (terrifying) assertion is the case, then it is certainly also the case that, when the issue of ubiquitous random drug testing of students finally reaches the Supreme Court, it will scrap the whole Vernonia**/Earls*** paradigm requiring at least some pretense of a special need (e.g., "athletes on drugs get injured, so we must test athletes") and simply allow unlimited suspicionless drug testing of students in any and all situations. If the drug war, to this Court, trumps the First Amendment, then surely it also trumps the Fourth Amendment. It's a slam dunk.
--Alito's concurrence, meanwhile, posits that no reasonable person could infer a political statement behind the term "Bong Hits 4 Jesus." That's a mighty bold pronouncement — and not one that suggests a philosophy of judicial restraint (as in "the opposite of judicial activism").
--Be sure to read Thomas' concurrence, which argues that students (again, apparently including adult students) have no First Amendment rights, period. Never, no way, no how. Remind me again why libertarians like him?
The case is Morse v. Frederick, No. 06-278 (June 25, 2007) (PDF - 60 pages).
More thoughts at Zero Boss, SCOTUSblog, Quizlaw.
---
*Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)
**Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
***Board of Education of Pottawatomie County v. Earls, 536 U.S. 822 (2002)
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25 June 2007
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