Commentary: Beyond the schoolhouse gate
on Jun 25, 2007 at 4:00 pm
Commentary
In word if not in spirit, the Supreme Court on Monday left intact its statement in 1969 that public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But there is an interesting reference in the main opinion, written by Chief Justice John G. Roberts, Jr., that suggests that it is possible, perhaps even quite likely, that students sometimes do shed their free speech rights beyond the gate.
Take the facts in the case decided Monday, Morse v. Frederick (06-278), and modify them somewhat. First, here are the basic facts as actually given: Joseph Frederick, a senior at Juneau-Douglas High School in Juneau, Alaska, during a parade-like event along Glacier Avenue in front of the school, unfurled a banner declaring “Bong Hits 4 Jesus.” The Chief Justice was able to conclude in Morse that the gesture occurred during a “school-sanctioned activity,” even if Joseph was across Glacier Avenue from the school at the time. The significance of the site of the gesture was a seriously disputed issue in the case, although the Chief Justice found its resolution easy, without openly disturbing the Court’s core school-speech precedent in a decidedly on-campus case, Tinker v. Des Moines School District, 38 years ago.
But suppose Joseph that morning had composed a digital banner with the same message on a laptop at home, and sent it to a friend whose house was next door. The friend had not opened his laptop yet, but carried it to school. Sitting in home room at the start of the school day, the friend logged on to his laptop, and, lo, the image of the banner appeared on the screen; other students saw it, and snickered. But it also caught the eye of the home room teacher. Was that display school-related, at least enough to lead to Joseph’s being punished for having propagated — while sitting at home — a pro-drug message to fellow students?
In the Roberts opinion Monday, there is this comment: “There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd., 393 F. 3d 608, 615, n. 22 (CA5 2004), but not on these facts” (he meant the real facts, not the modified scenario suggested here). When one examines the Fifth Circuit’s decision in that case, however, it becomes apparent that there is a very active controversy unfolding in lower courts and in the academic literature about how far school regulatory authority reaches beyond the gate. And therein lies the potential sequel issue to Morse, raising the question of whether a seemingly narrow ruling (made to seem even narrower by the concurring opinion of Justice Samuel A. Alito, Jr., joined by Justice Anthony M. Kennedy) might in fact set the stage for a more expansive view of school authority in the future.
Here is the way the Fifth Circuit describes the new debate: “Many courts have applied the Tinker standard in evaluating off-campus student speech later brought on-campus by persons other than the speaker. These cases have dealt with such things as ‘underground’ student newspapers distributed off-campus, student-run websites created on off-campus computers, and various writings brought on-campus by students other than their original author. Although reaching differing conclusions at to the legality of restrictions placed upon the speech in question, these cases consistently approach off-campus speech brought on-campus as subject to regulation under Tinker‘s ‘material and substantial’ disruption test. Not all courts have adopted this approach, however, and some have found that off-campus speech is entitled to full First Amendment protection even when it makes its way onto school grounds without the assistance of the speaker. Still others have adopted a combination approach, analyzing off-campus speech under a flurry of standards in an effort to comprehensively address all possible legal approaches.”
It thus may not be long before this controversy reaches the Supreme Court, perhaps pulling outward, so to speak, the Tinker precedent. Given the ubiquity of digitized speech and images, this is not a fanciful expectation. And the Morse precedent no doubt will become a key precedent in addressing that question. If that precedent is, in fact, not as modest as the Chief Justice (and Justice Alito) made it seem, but rather turns out to be (as the dissent suggested) a declaration of a principle that “has no stopping point,” it might well authorize a disciplinary response to the scenario of the laptop-to-laptop transfer of an unapproved message.
This is perhaps another way of suggesting caution about taking Morse as a this-case-this-day-only ruling by the Court. Between the Roberts opinion, the concurrences, and the dissent, the Justices are deeply divided about standards for regulating student speech, and Morse makes only a modest beginning on settling on some new standards. The dominant thrust of the principal opinion appears, in potential, at least, to be toward a considerable expansion of school officials’ authority over student expression. No longer is it necessary to regulation, for example, to find that the expression disrupts school life, or that it is crudely and profanely offensive, or that it is an utterance done during assigned or immediately supervised school work. If it is close enough to the schoolhouse gate, it appears to be subject to regulation — at least when it is perceived, by school officials, as promoting a drug-use message.
While Justice Alito’s separate opinion suggests that the creation of exceptions to student free-speech stops right here, that opinion speaks only for two Justices, and — more importantly — does not address the question of whether the underlying rationale could push Morse beyond the school grounds or the classroom. There is, perhaps, not as much judicial modesty here as originally meets the eye of the reader.
