June 25, 2007

A Dark Day at the Supreme Court

The next person who says a kind word about Robert C. Byrd, who voted for Justice Alito, risks geting slapped in the face. Morse, Hein ... you can follow the Court's actions today at SCOTUSBlog - if you have the stomach for it.

Posted by armand at June 25, 2007 10:53 AM | TrackBack | Posted to Law and the Courts


What in the name of Joyce DeWitt!?! ... Between personal correspondence relating to Morse (the Bong Hits 4 Jesus case) and the discussion on SCOTUSBlog I think it's fair to say that this decision makes no sense. And (my own reaction) aren't they just inviting 5 million lawsuits in which judges get to determine what is debate and what is snark (or celebration?). One wonders if this case really turned on Justice Kennedy's well-known dislike for hippies.

Posted by: Armand at June 25, 2007 12:09 PM | PERMALINK

As concerned as I am for the Morse decision - and trust me, I am concerned as I have long disagreed with the profound and extensive limits on students rights - I feel that we will see a much bigger impact from the travesty that is the Wisconsin Right to Life decision, as overruling McConnell and striping out so much of the issue ad provisions in BCRA is giving a huge amount of electoral power to unions and corporations to run this "issue ads" that supposedly don't attack or endorse a candidate. The electioneering for 2008 has officially begun.

Posted by: ryan at June 25, 2007 12:27 PM | PERMALINK

notably, the campaign speech case hinged on the principle that, when in doubt, a close case should be decided in favor of speech. the student speech case, however, clearly repudiated that principle. no, that's not true, it didn't clearly repudiate that principle. it paid lip service to the principle, i believe. but it did flout it. it flouted it bad. so benefit of the doubt goes to all non-hippie speakers.

btw, did anyone catch the last few paragraphs of stevens' morse dissent? is it just me or did he pretty much advocate for legalization of marijuana. i mean, he didn't come out and say it, but it's pretty hard to question his personal sense that it would be best for all involved parties, even down to his nitty-gritty aside that it would be better to legalize, regulate, and tax it than to criminalize it. wow.

Posted by: moon at June 25, 2007 02:34 PM | PERMALINK

There's a great (IMHO) comment at Above the Law that simply says: "Bong Hits 4 Jesus's Glaucoma". Would that the students involved had added that extra word to their sign - then this could be even more, uh, interesting.

By the way, has anyone done a count on how many precedents Thomas said he'd like to see overturned in today's various opinions?

Posted by: Armand at June 25, 2007 03:37 PM | PERMALINK

come on moon, you're trying to compare a political ad on TV with a student banner that was potentially disruptive and that could reasonably be deemed inappropriate considering the age and impressionability of highschool students? And you're comparing an act of congress, with all its deliberations and calculations (plenty of time to think about the self-serving potential of the restriction) to a spur of the moment judgement made by a school principal under time sensitive conditions? The two scenarios cannot both be described as "close". The differences are too stark on points relating to the reasoning underlying the court's past precedents (not to mention common sense).

I'm torn over McCain-Feingold. I agree that it is a relatively close call. But the Morse case? Not a chance.

bad facts make bad law. Or in the case of Tinker, bad facts make good law which is susceptible to misinterpretation. The Court has had preciouis few opportunities to bring Tinker's holding into focus. In the meantime I fear that public education has been undermined by school officials who walk on egg shells as a result of fear and uncertainty as to liability under Tinker. I firmly believe that two generations of students and the nation as a whole has suffered the consequences. Its good to see the Court clarify the balance between student rights and educators responsibilities in a manner consistent with the principles set forth in the Tinker opinion.

Posted by: sheff at July 5, 2007 02:37 AM | PERMALINK

"Its good to see the Court clarify the balance between student rights and educators responsibilities in a manner consistent with the principles set forth in the Tinker opinion."

couple of things, sheff. first, i'm fine with tinker, and i agree it could use some work in light of subsequent jurisprudence. second, i don't think the officla here should have been held liable for damages, because i think it was a close enough call that she acted within a reasonable degree of belief sufficient to preserve her immunity from suit.

but if you'll look not just at my pithy aside directly above, but at my more detailed analysis a few comments higher, you'll see that i need not wander to any other case -- tinker, or the campaign speech case -- to find fatal flaw in morse's reasoning. as i noted there, the problem with morse is that the majority essentially deemed the message incoherent nonsense so that they could refute the notion that it was political speech, but then deemed the message to be effectively pro-pot so they could justify stifling it. so which is it, nonsense or political speech? they're trying to have it both ways, and in so doing have essentially said we don't even have to reason when it comes to student speech, we'll just do what we feel like, but odds are if you're suppressing student speech you'll be safe not only from damages but even from injunctive relief. there's absolutely no meaningful rule one can derive from the majority, or the arguably controlling CO from justice alito, and that's what makes it a bad decision. my principal point is jurisprudential only.

in defense of my more pithy aside, and in response to your criticism thereof, i maintain that, unless there's a principled basis for applying a presumption in favor of speech in the context of campaign finance (as the Court suggested) while applying a contrary presumptions against speech in the school context (as the Court implied, and reasoned itself into knots to effectuate) -- a principled basis the Court did not condescend to identify, and one that cannot be found in any prior decisions that i know of -- the decisions are inconsistent, create confusion with regard to the First Amendment, and thus, as in the student case standing alone, have abdicated their responsibility to clarify rather than obfuscate the law with results-oriented non-rational opinions such as these two.

also, i remain deeply troubled that the Court declined to engage the "school-sanctioned event" aspect of the case, taking for granted what was litigated rather than assumed in the courts below. i know of no school-sanctioned event from my childhood that i was officially free not to attend despite its occurrence during school hours. no reasonable viewer or attendee could have mistaken that speech for something pertaining to the school -- parades pass lots of schools; that proximity provides no basis for censoring the speech of young people who happen to be nearby -- and as such the tinker test was wrong to begin with, even if coherently applied.

Posted by: moon at July 9, 2007 12:05 PM | PERMALINK
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