Today brought a decision in the “Bong Hits 4 Jesus” case, Morse. The ruling was 5-4, and the Alito concurrence that was joined by Kennedy will be controlling in the case, not the opinion of the Chief Justice. SCOTUSblog has preliminary thoughts on the holding:

Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:
I join the opinion of the Court on the understanding that (a) it goes no further than 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.’ The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s educational mission. See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.[emphasis author's]

Thankfully the Court rejected the Government’s contention that anything that interferes with the ‘educational mission’ of the school could be censored. Clearly such a holding would mean that any protest would probably be against the educational mission of a school, and even worse could effectively render student debate/protest of educational issues at their own school as unprotected speech.

Even the Chief Justice said that had the banner conveyed any sort of political or religious message it would be acceptable. That speech about the political debate around criminalization of drug use or possession is protected, but viewed the current case as a celebration of illegal activity.

The controlling opinion here does worry me, it’s clear that they went to great lengths to say that this was a very limited holding. That this only dealt with the encouragement of drug use, and that such regulation should be at the “far reaches” of what the First allows. However, too many outstanding issues remain.

The opinion makes mention of debating medical marijuana usage, or other politics surrounding drugs as long as it doesn’t advocate their illegal use. This part really bothers me because the holding seems vague enough to invite reckless censorship by school officials, and as this case was just decided it will be interpreted by District and Circuit courts.

I want to know when an argument for the legalization, decriminalization, or use of marijuana as a medical substance shifts from a political discussion and into an argument for drug use. It seems too vague to me, in saying that medical marijuana has clear benefits, is that not encouraging its use, perhaps by individuals who have heard this argument and may suffer from symptoms that medical marijuana may help? Is the distinction that it is assumed that medical marijuana would be a legal enterprise and so would be equivalent to student speech advocating the continued use of anti-depressants?   However, with abuse of pharmaceuticals on the rise, could even that be considered promoting drug use? Or what if a student simply says, I think marijuana should be legalized, quick reading of the opinion suggests that would be protected, but interpretation by lower courts can once again force the issue.

In regard to student speech, I believe that full First Amendment rights should be extended to students attending public schools. The object of any education is to create a well-rounded member of society. When it comes to their role in civics, instruction should not be limited to a classroom discussion and memorization of the Preamble to the Constitution. Being able to practice those rights is crucial to the development of a citizenry that truly values freedom.

Students need to debate complex and often gray area issues about politics and social situations in their education. But outside of teacher led discussion, students must also be able to practice such freedom within the school itself and in their discussions with one another or in criticism of teachers and curricula.

I hope that the inconsistencies I have seen aren’t abused and that further cases aren’t necessary. But as it stands, I think that it is inevitable that a challenge will occur, though it will be against the interpretation of the holding. This is another decision where Kennedy should have sided with the minority, and simply said in his opinion that schools need to work within the community and alongside parents to handle issues like these, but instead, with the slam of a gavel, the ability to broach the controversial at school is now curtailed, even if only in reference to taking bong hits for Jesus.