Eugene Volokh has a nice post up about the Supreme Court’s free speech decision in Morse vs. Frederick, in which the court ruled that school officials are able to restrict speech that can be construed as advocating illegal drug use (“Bong Hits 4 Jesus”) without impacting their right to comment on drug policy. Volokh discusses the unsoundness of Alito’s opinion on the matter:
The trouble is that “speech that a reasonable observer would interpret as advocating illegal drug use” often also “can plausibly be interpreted as commenting on any political or social issue.”
Consider, for instance, “legalize marijuana because marijuana is safe and fun.” While this doesn’t expressly advocate illegal drug use, a reasonable observer might well interpret it as so advocating: After all, the statement does say that marijuana is fun, and fun and safe things are often worth doing. Yet the statement that marijuana is fun is an important part of the comment on the political or social issue. While one might well support legalizing marijuana even if it weren’t fun, the claim that marijuana is fun — and thus, implicitly, that people are losing a good deal of pleasure because of the marijuana ban — is an important argument against the ban.
It’ll be fun to see how this plays out in subsequent student free speech cases.