Speech Restrictions and the Law in 2007

When it comes to speech restrictions and the law in 2007, perhaps the fairest thing that can be said is that this was a “complicated” year for advocates of free speech on campus. As many people know, the Supreme Court took on a student speech case this year, Morse v. Frederick—but the catch is that this case was about a high school student, not a college student. For high school students, the news was clearly bad. As Samantha put it in a June 24 blog entry on the decision, “The Supreme Court further eroded high school students’ free speech rights yesterday when it held in Morse v. Frederick that a public high school was within its rights to suspend a student for unfurling a banner that read ‘BONG HiTS 4 JESUS’ at a school-sponsored event [the Olympic torch relay].”

From a First Amendment perspective, the Morse decision was pretty questionable. As Greg pointed out in one of my favorite blog entries of the year, at no time did the court really deal with the fact that “BONG HiTS 4 JESUS” doesn’t make sense as anything but a joke—and a nonsensical one at that. It’s more than a bit of a stretch to suggest that the phrase really was meant to encourage teenage drug use (can someone really argue with a straight face that student Joseph Frederick was hoping through this message to encourage his fellow students to smoke marijuana in order to show support for the teachings, principles, or divinity of Jesus Christ?). And, as Greg pointed out, “actually recognizing that the phrase “BONG HiTS 4 JESUS” was a joke—whether funny or not—might have highlighted what courts have otherwise long understood: scrutinizing the meaning of a joke to decide whether or not it should be protected is a bad idea.”

In the end, we were left with the feeling that the Court really wanted to allow the school to discipline Frederick—after all, what he did was embarrassing to them. But in doing so, it did unnecessary damage to the First Amendment.

Probably because of this unjustified damage, the Morse decision was a tortured one that produced no less than five opinions, with Justice Alito’s probably controlling opinion (joined by Justice Kennedy) making an obvious effort at First Amendment damage control. Alito begins his opinion thusly:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

Since Morse is a case about high schoolers, why does FIRE care? Because all too often, colleges argue erroneously (in our opinion) that high school-generated precedent should be applied to college students. The vast majority of college students are over 18. They can do nearly everything but legally drink alcohol—they can fight in a war, they can vote, they can get married, own businesses, and run for political office. So, of course, colleges regularly argue that, for instance, Marine veterans should be able to be treated like ninth-graders. An example of a case in which a federal court accepted this reasoning is the 2005 Seventh Circuit case of Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005). Greg talks about Hosty in the context of Morse in this blog entry, where he notes, “the Seventh Circuit explicitly rejected the idea of a bright-line distinction between college and high school students, ignoring decades of case law clearly distinguishing the rights of high school students (who are mostly minors) from those of college students (who are overwhelmingly 18 and over).” Since Hosty, a college decision, relied on the earlier Hazelwood v. Kuhlmeier (1988) Supreme Court decision about the high school press, Greg justifiably worried that “the rationale of Morse is likely to be abused by those who favor speech codes, speech zones, civility restrictions, and other methods of curtailing campus speech.”

Thankfully, America managed largely to avoid this in 2007 when it came to college cases. FIRE was involved in two major college free speech cases this year, at San Francisco State University (SFSU) and at Temple University. At SFSU, a federal magistrate judge issued a preliminary injunction prohibiting SFSU and the California State University (CSU) System from enforcing several of the policies challenged in the lawsuit: a vague SFSU policy requiring students to act in accordance with SFSU “goals, principles, and policies” and a CSU System-wide policy requiring students “to be civil to one another.” And at Temple, a federal judge ordered a permanent injunction against Temple’s former speech code.

Of course, the law moves slowly. What could be called “Morse creep” is more likely to be seen in 2008 and thereafter, if it is going to be seen at all. Hopefully, America’s courts will continue (for the most part) to take the position that if adult college students can be trusted to vote and fight (unlike high schoolers), they can also be trusted to discuss controversial and even “offensive” issues without suffering censorship from their “betters” in college and university administrations.