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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 25, 2007 ::
    Morse v. Frederick, aka Bong Hits: Well, from the lineup, I guess I'm a liberal today.

    I fear that what we have here is a drug exception to the First Amendment.* At least if you think Tinker was bascially right about public-school students' 1st Am rights -- and the Court purports to adhere to it -- then what else can we make of the Chief's opinion placing "advocacy of use of illegal drugs" at the head of his opionion for the Court?

    A few years ago the Court declined to recognize an across-the-board "drug exception" to the Fourth Amendment "knock and announce" requirement. But in myriad other ways, the war on drugs has greatly changed our law, and not necessarily for the better.

    Another, more benign way to read this is that a bubble of Fraser-Kuhlmeier authority travels beyond the campus, to any "school-sanctioned event" during "normal school hours." I have no problem with Fraser or Kuhlmeier, but I'd just as soon they stayed back in the school building, or in venues where the speaker could reasonably be taken as speaking for the school.

    *I trust I'm not turning into John Paul Stevens, but he says something similar in his dissent, which I had not yet read when I wrote this post: "[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."

    :: David M. Wagner 12:19 PM [+] ::

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