"Tinkering with Alito’s Code to Morse’s Limits: Why Alito’s Concurrence is Crucial to Preserving Tinker and Students’ Right to Free Speech"

The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:

The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school. 

In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest. 

Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from. 

Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.