Morse v. Frederick: History, Policy and Temptation
First Amendment Center, Online Symposium: Justice Thomas and the First Amendment, 2007
5 Pages Posted: 25 Oct 2007
This short Essay, written for a First Amendment Center online symposium on the First Amendment jurisprudence of Clarence Thomas, examines Justice Thomas's concurring opinion in Morse v. Frederick, the 2007 "Bong Hits 4 Jesus" case. In that opinion he called for removing First Amendment protection for student speech and thus for overruling Tinker v. Des Moines School District, on the ground that, as originally understood, "freedom of speech" did not extend to student speech.
The Essay raises preliminary questions about Justice Thomas's historical analysis, in particular his reading of nineteenth and early twentieth century cases that he views as demonstrating the lack of protection those courts had accorded student speech. It also examines whether Justice Thomas's originalism leads him more generally to eschew balancing tests in First Amendment cases, in favor of either near-absolute protection or complete lack of protection for speech. The Essay then considers how Justice Thomas's "absolutist originalism" dovetails with his views about the proper role of courts, at least when deciding constitutional cases. It concludes with some cautionary words about finding black-and-white distinctions in the common-law cases Justice Thomas uses as his primary evidence for the original understanding of the First Amendment's application to student speech.
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