The BONG HiTS 4 JESUS decision, issued June 25, 2007, holds that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Morse v. Frederick, at page 8. Schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, at page 2. The decision is both clear and limited in holding nonsensical speech about illegal drugs can be prohibited in public schools.

The Supreme Court characterized the speech at issue, “Bong hits 4 Jesus” written on a 14 foot banner, as “cryptic,” perhaps offensive to some, funny to others, and meaningless to many. According to the student, it was just “nonsense meant to attract television cameras.” Morse at 6. And it was not political. Morse at 8. It nonetheless had an unmistakable message of some sort about drug use. “Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.” Morse at 7. Accordingly, the banner, unfurled during a school activity, and its speech were not protected by the First Amendment. 

Analysis follows.

In the line of student speech case precedent, this case is more on the side of Fraser, which involved a student’s “elaborate, graphic, and explicit sexual metaphor,” than Tinker, which addressed a silent anti-Vietnam war protest involving black arm bands. Gibberish, even elaborate gibberish, involving either lewd and indecent speech or illegal drug use, is not protected. The Court appears to be creating categories of prohibited student speech, a point criticized in the dissent, that should be easy for school officials to apply in theory.

But in practice, the decision does not give guidance in the event student political speech, or perhaps just non-gibberish speech, includes illegal drug references, for example, “The President smoked dope, so can I” to support decriminalization. Justice Breyer wrote at 3, that he “cannot find much guidance in today’s decision.” Indeed, what if, as he rhetorically asks, the next banner instead reads “Bong hits 4 decriminalization?” Will the Court apply Tinker’s substantial disruption inquiry in that instance, or will the Court take a Fraser-Morse categorical approach? 

The Court hinted at this tension while discussing the case precedent, noting student speech can be subject to either Tinker’s or Fraser’s analysis, but declined to say which test applies and when. Morse at 8-11. As Justice Thomas, in his concurring opinion at 9-10, sees it, “our jurisprudence now says that students have a right to speak in schools except when they don’t. . .” and so Tinker should just be overruled. On this First Amendment issue, Justices Thomas and Alito stand far apart. Justice Alito’s concurring opinion draws a line up front by stating his view that political and social speech would likely be protected even if combined with drug references. Given the case precedents and divergent views on the current Court, the lack of wider guidance is not surprising.

Such guidance will have to wait for another, and surely inevitable, day. And given how the Justices align (or not) on the issue, that will likely be quite an interesting read.

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