The Drug Exception to the First Amendment

You heard today's good news regarding freedom of speech. Now for the bad news: The Supreme Court has ruled that Joseph Frederick, then a high school senior in Juneau, Alaska, did not have a First Amendment right to hold up a "Bong Hits 4 Jesus" banner at an off-campus Olympic torch rally in 2002. Since students were let out of class to attend the rally (although Frederick himself came directly from home), the Court ruled, it was in effect a school event and they were still under school supervision. Because the banner sent a pro-drug message, the Court ruled, Principal Deborah Morris was within her rights when she crumpled it up and suspended Frederick for 10 days.

As I feared, the Court seems to be opening up a "drug exception" to the First Amendment, albeit limited (so far) to students in school. It's true that high school students do not have the same free speech rights as adults, but the Court has held that they do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." They have a right, for instance, to wear anti-war armbands. In that case, the Court held that student speech may be suppressed only if it will "materially and substantially disrupt the work and discipline of the school." A "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" or "an urgent wish to avoid the controversy which might result from the expression" is not enough to justify censorship. But fear of drugs apparently is.

"Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," the Court ruled. So where does that leave a student who wears a "Legalize It" T-shirt, who points out the problems caused by prohibition during a class discussion of drugs, or who shares accurate information about the hazards of marijuana with his fellow students? I suspect principals like Deborah Morris would view all of these student expressions as "encouraging illegal drug use," even though they are also indisputably political speech. If expressing opposition to the Vietnam War is protected even in school, how can expressing opposition to the War on Drugs not be? I have a feeling we're going to find out.