Mixed bag today from SCOTUS on free speech...

[Glocksman]

First off, we have the Bong Hits 4 Jesus case.

Chief Justice Roberts wrote the 5-Justice majority opinion, which held that schools can punish student speech reasonably believed to promote illegal drug use (which in the majority's view the "Bong Hits 4 Jesus" banner did).

There were a slew of concurrences in the case, suggesting that the Court was much more splintered than the majority opinion indicates. Justice Alito concurred, joined by Kennedy, stating that he joined the majority opinion on the understanding that the holding was really very very narrow. According to Alito, the case is really just about speech that promotes illegal drug use in schools without a plausible claim to making an argument relating to a social or political issue (whether about the war on drugs or something else).

On the other side of the narrow/broad divide, Justice Thomas wrote a separate concurring opinion endorsing Justice Black's dissenting opinion in Tinker v. Des Moines to the effect that public school students don't have First Amendment rights at school at all. (Pretty impressive that Roberts kept a majority together given the broad range of views among the five Justices that joined it.)

Justice Breyer concurred in the judgment: he would have resolved the case on qualified immunity grounds without reaching the merits. Justice Stevens dissented, joined by Justices Souter and Ginsburg.

Some of the comments in that volokh.com post are pretty informative.

Then we have FEC v WRTL in which the court ruled that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate.
Interestingly enough, WRTL was supported in this case by the liberal Alliance for Justice and other groups that you'd never normally associate with 'right to life' groups.

[Oni Koneko Damien]

On what information I have so far, I'm with the court on this one. School is for learning. If you want to stick a 'Bong hits for Jesus' flag in your yard, fine, knock yourself out.

Actually promoting an illegal activity and using government, taxpayer-funded property to do so? Fuck off.

[Darth Wong]

With this ideologically-based SCOTUS, I have to wonder what the real motivations were for some of those opinions. Nevertheless, the idea that the First Amendment means you can't enforce dress codes in school is a severe perversion of the idea. What's next? McDonald's employees claiming that their First Amendment rights mean they don't have to wear the uniform? It's the same kind of logic.

[Glocksman]

On what information I have so far, I'm with the court on this one. School is for learning. If you want to stick a 'Bong hits for Jesus' flag in your yard, fine, knock yourself out.

Actually promoting an illegal activity and using government, taxpayer-funded property to do so? Fuck off.

I agree, but if this is how it went down, it's not so simple;

As I understand the facts of this case, the student (who I believe was an adult at the time, correct me if I'm wrong) woke up, elected not to attend school, went to a public sidewalk that was across from, but not on, school property and unfurled a banner. The student was *not* let out of school to attend a field trip or a school-sponsored event because there he was not in school to begin with. As I see it, he was on the sidewalk (the paradigmatic public forum) on his own time and outside of his capacity as a student.

[Darth Wong]

I agree, but if this is how it went down, it's not so simple;

As I understand the facts of this case, the student (who I believe was an adult at the time, correct me if I'm wrong) woke up, elected not to attend school, went to a public sidewalk that was across from, but not on, school property and unfurled a banner. The student was *not* let out of school to attend a field trip or a school-sponsored event because there he was not in school to begin with. As I see it, he was on the sidewalk (the paradigmatic public forum) on his own time and outside of his capacity as a student.

Assuming that "poster at volokh.com" is actually a reliable source (for some reason), this would seem to be illegal under the usual city bylaws against posting large signs on public property without a permit. That's why you can't just go to the park and put up a billboard for your business. Of course, I suppose people could argue that it was actually a one-man protest demonstration and therefore allowed on public property, and I don't know how that would go down. One might also argue that the public property between the sidewalk and the street is not like most public property; it's the foot of somebody's lawn, and I know I'd be fucking pissed if some asshole decided to hold a demonstration at the foot of my lawn.

[Glocksman]

Of course, I suppose people could argue that it was actually a one-man protest demonstration and therefore allowed on public property, and I don't know how that would go down. One might also argue that the public property between the sidewalk and the street is not like most public property; it's the foot of somebody's lawn, and I know I'd be fucking pissed if some asshole decided to hold a demonstration at the foot of my lawn.

Indeed. I don't think I'll be parading in front of your house demonstrating for gun rights anytime soon.

In SCOUTS's opinion, it says that he was 'late in arriving' and went across the street from the school to do what he did. From that, I gather that the court considered him to be subject to the discipline of the school since he was a student, even if he didn't show up in the morning for attendance and didn't 'check in' upon his arrival across the street from the school.

If he's legally 'present' at school, the court made the right decision.
If not, then I agree with Justice Stevens.

[Glocksman]

Added: This quote from Justice Roberts' opinion makes it clear.

At the outset, we reject Frederick’s argument that this
is not a school speech case—as has every other authority
to address the question. See App. 22–23 (Principal
Morse); App. to Pet. for Cert. 63a (superintendent); id., at
69a (school board); id., at 34a–35a (District Court); 439
F. 3d, at 1117 (Ninth Circuit). The event occurred during
normal school hours. It was sanctioned by Principal
Morse “as an approved social event or class trip,” App. 22–
23, and the school district’s rules expressly provide that
pupils in “approved social events and class trips are subject
to district rules for student conduct.” App. to Pet. for
Cert. 58a. Teachers and administrators were interspersed
among the students and charged with supervising them.
The high school band and cheerleaders performed. Frederick,
standing among other JDHS students across the
street from the school, directed his banner toward the
school, making it plainly visible to most students. Under
these circumstances, we agree with the superintendent
that Frederick cannot “stand in the midst of his fellow
students, during school hours, at a school-sanctioned
activity and claim he is not at school.” Id., at 63a. 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 was legally considered to be at school.
Therefore the school had the authority to order the banner removed.

[Howedar]

With this ideologically-based SCOTUS, I have to wonder what the real motivations were for some of those opinions. Nevertheless, the idea that the First Amendment means you can't enforce dress codes in school is a severe perversion of the idea. What's next? McDonald's employees claiming that their First Amendment rights mean they don't have to wear the uniform? It's the same kind of logic.

There is a meaningful difference in that the state can force a kid to be at school. The state, thank God, has never forced me to go to or work at McDonald's.