Most of you know about the really bad decision handed down by the Supreme Court this week in regard to student speech. It has sent a few chills up my spine and not because of the moronic content of the student’s banner. What’s freaking me out is that the Supreme Court seems to have made this decision based on the message contained – e.g. they appear to have ruled that there is some kind of “illegal drug exception” to free speech rights.
I’m no lawyer but nonetheless found the thread on Volokh’s site among legal smarty-pants very interesting. Commenter TruePath probably put it best (emphasis mine):
“This was the worst decision by the Supreme Court in recent memory… the justices specifically ruled that the banner did express substantial content (advocated drug use) and then ruled it lacked First Amendment protection because of the idea expressed.
This undermines the central premise of free speech: [that] the government doesn’t get to restrict views based on their content … the principle that no idea should be punished only the basis of its content should be inviolate.
The argument about the need for schools to maintain discipline might have been a good one if the justices hadn’t made it clear that the content of the banner was pivotal. If you can ban speech just because the idea is dangerous you have no free speech at all. That’s been the excuse of every despotic regime in history. The discipline argument only works if the supposed harms are a result of the form of the speech not the content.
This decision all but explicitly says that the boundaries of free speech are determined by the badness of the idea being expressed. Yet, the very value of free speech is as a bulwark against the (potentially misguided) idea that some kinds of ideas are too dangerous to be heard.
Free speech for acceptable views is no free speech at all.”
I think this sets a really scary precedent, and dissenting Justices Stevens, Souter and Ginsburg agree. In his dissent, Justice Stevens wrote:
“[This decision] upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint… encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship. [C]arving out pro-drug speech for uniquely harsh treatment … finds no support in our case law and is inimical to the values protected by the First Amendment.
[It would be] profoundly unwise to create special rules for speech about drug and alcohol use … surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.
The school’s interest in protecting its students from exposure to speech ‘reasonably regarded as promoting illegal drug use’ … cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more – indeed, much more.” [source]
The absurd War on Some Drugs has already cost us the Fourth, Fifth, Eighth, Ninth and Tenth Amendments – so I guess logically the First had to follow. When does it end?
The only place to fix it is in the Congress, and there’s no sign of any courage there these days.
Plus, Paris Hilton just got out of jail!