Now we know that a small majority of the court believes that public schools can punish students for speech that advocates, or takes a flippant attitude towards drug use. Again, it's not the speech itself, but the consequence that matters. We read through the introductions of each of the opinions written in the case in order to get a feel for what they were about.
I only pose as a constitutional scholar when necessary, so I recommend the following comments for real depth and insight regarding Morse v. Frederick: Althouse, Findlaw, the Volokh Conspiracy, and PrawfsBlawg.
A few items are worth pondering. Why did the five conservatives justices interpret "Bong Hits for Jesus" as pro drug, while three of the liberals saw it as nonsense? The typical conservative likes institutional control over individuals while liberals do not (this is a generalization of course), so did they just interpret the sign in a manner that would justify that end? At root are all justices activists who interpret language in a way that justifies their policy preferences?
Also, with one glaring exception, the majority of the justices did not want to overturn the precedent established in Tinker v. Des Moines which states that students did have the right to political expression and did not loose it when they walked into the school. Alito and Kennedy took the trouble to establish that Morse was about restricting speech that promoted an activity judged harmful to kids, and is illegal besides.
The positions of Breyer, Roberts, and Scalia are up in the air on this because the former did not believe this case should have been decided on free speech grounds, just on whether the principle was liable for damages (none of the nine justice believed that she was) and the latter two did not sign Alito's opinion.
Which leave us Clarence Thomas, who is beginning to freak me out.
Thomas believes in the doctrine of original intent, which has its variants but ultimately rests on the notion that the Constitution should be interpreted in a manner consistent with the original intent of the framers of the document--which assumes that such intent existed, and that the framers intended for their vision of the document to stay consistent over time and not be modified to fit changing circumstances. Thomas uses this doctrine to seemingly call for wholesale changes in how students are educated in public schools.
Here are a few tidbits from his argument:
". . . early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled "a core of common values" in students and taught them self-control. . . . In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order."
I'm no fan of the current state of public schools, but Thomas does not paint a picture of a time I'd like to go back to, or one that I think was especially laudatory. I say this while I've also been on a tear regarding the inability of schools to teach, but Thomas isn't talking about teaching, he's talking about control and indoctrination.
For him, we all went downhill when Tinker was decided (and Woodstock and the Beatles and hippies and all that I'm sure), so Tinker must be overturned. He makes his case with simple originalist language: "In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools."
It is noteworthy that no one else signed Thomas' decision, especially not Scalia or Roberts whom I would have thought would be sympathetic to this argument.
It is also telling that no one bothers to challenge him by pointing out that the mere exclusion of this right in the Constitution should not be "construed to deny or disparage other retained by the people." That of course is the language of the Ninth Amendment which we have already seen invoked in a small number of occasions before by Ron Paul and Jack Kervorkian. It is ironic that Thomas ignores strict Constitutional language while he attempts to uphold a strict meaning of the Constitution. Are the other justices delinquent in not making this case? Might we be seeing the beginnings of a groundswell of support for the Ninth Amendment?
Were the opponents of the Bill of Rights correct when they claimed that its inclusion in the Constitution would actually lead to a reduction in the rights of individuals?
Added: Two other points slipped by a moment ago:
1-Has anyone else picked up on the irony that the education received as a result of the waving of the bong banner far surpassed anything that could have been learned by watching a torch go by. The students involved learned a ton about court procedures by actually going through the process. They took a case to the Supreme Court! How cool is that?
2-Maybe this was some elaborate prank.
Stoner 1 to Stoner 2: "Dude, I bet I can get the Chief Justice of the Supreme Court to say 'Bong Hits 4 Jesus.'"
Stoner 2 to Stoner 1: " How're you going to do that?"
Stoner 1 to Stoner 2: "Well you know that torch that's coming by next week? . . .
The court's been punk'd.
A few items are worth pondering. Why did the five conservatives justices interpret "Bong Hits for Jesus" as pro drug, while three of the liberals saw it as nonsense? The typical conservative likes institutional control over individuals while liberals do not (this is a generalization of course), so did they just interpret the sign in a manner that would justify that end? At root are all justices activists who interpret language in a way that justifies their policy preferences?
Also, with one glaring exception, the majority of the justices did not want to overturn the precedent established in Tinker v. Des Moines which states that students did have the right to political expression and did not loose it when they walked into the school. Alito and Kennedy took the trouble to establish that Morse was about restricting speech that promoted an activity judged harmful to kids, and is illegal besides.
The positions of Breyer, Roberts, and Scalia are up in the air on this because the former did not believe this case should have been decided on free speech grounds, just on whether the principle was liable for damages (none of the nine justice believed that she was) and the latter two did not sign Alito's opinion.
Which leave us Clarence Thomas, who is beginning to freak me out.
Thomas believes in the doctrine of original intent, which has its variants but ultimately rests on the notion that the Constitution should be interpreted in a manner consistent with the original intent of the framers of the document--which assumes that such intent existed, and that the framers intended for their vision of the document to stay consistent over time and not be modified to fit changing circumstances. Thomas uses this doctrine to seemingly call for wholesale changes in how students are educated in public schools.
Here are a few tidbits from his argument:
". . . early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled "a core of common values" in students and taught them self-control. . . . In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order."
I'm no fan of the current state of public schools, but Thomas does not paint a picture of a time I'd like to go back to, or one that I think was especially laudatory. I say this while I've also been on a tear regarding the inability of schools to teach, but Thomas isn't talking about teaching, he's talking about control and indoctrination.
For him, we all went downhill when Tinker was decided (and Woodstock and the Beatles and hippies and all that I'm sure), so Tinker must be overturned. He makes his case with simple originalist language: "In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools."
It is noteworthy that no one else signed Thomas' decision, especially not Scalia or Roberts whom I would have thought would be sympathetic to this argument.
It is also telling that no one bothers to challenge him by pointing out that the mere exclusion of this right in the Constitution should not be "construed to deny or disparage other retained by the people." That of course is the language of the Ninth Amendment which we have already seen invoked in a small number of occasions before by Ron Paul and Jack Kervorkian. It is ironic that Thomas ignores strict Constitutional language while he attempts to uphold a strict meaning of the Constitution. Are the other justices delinquent in not making this case? Might we be seeing the beginnings of a groundswell of support for the Ninth Amendment?
Were the opponents of the Bill of Rights correct when they claimed that its inclusion in the Constitution would actually lead to a reduction in the rights of individuals?
Added: Two other points slipped by a moment ago:
1-Has anyone else picked up on the irony that the education received as a result of the waving of the bong banner far surpassed anything that could have been learned by watching a torch go by. The students involved learned a ton about court procedures by actually going through the process. They took a case to the Supreme Court! How cool is that?
2-Maybe this was some elaborate prank.
Stoner 1 to Stoner 2: "Dude, I bet I can get the Chief Justice of the Supreme Court to say 'Bong Hits 4 Jesus.'"
Stoner 2 to Stoner 1: " How're you going to do that?"
Stoner 1 to Stoner 2: "Well you know that torch that's coming by next week? . . .
The court's been punk'd.
