A-plus Writer

Cite as: 551 U. S. ____ (2007) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________

No. 06ñ278

_________________

DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH

FREDERICK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2007]

JUSTICE STEVENS, with whom JUSTICE SOUTER and

JUSTICE GINSBURG join, dissenting.

A significant fact barely mentioned by the Court sheds a

revelatory light on the motives of both the students and

the principal of Juneau-Douglas High School (JDHS). On

January 24, 2002, the Olympic Torch Relay gave those

Alaska residents a rare chance to appear on national

television. As Joseph Frederick repeatedly explained, he

did not address the curious messageóìBONG HiTS 4

JESUSîóto his fellow students. He just wanted to get the

camera crewsí attention. Moreover, concern about a nationwide

evaluation of the conduct of the JDHS student

body would have justified the principalís decision to remove

an attention-grabbing 14-foot banner, even if it had

merely proclaimed ìGlaciers Melt!î

I agree with the Court that the principal should not be

held liable for pulling down Frederickís banner. See Harlow

v. Fitzgerald, 457 U. S. 800, 818 (1982). I would hold,

however, that the schoolís interest in protecting its students

from exposure to speech ìreasonably regarded as

promoting illegal drug use,î ante, at 1, 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. 2 MORSE v. FREDERICK

STEVENS, J., dissenting

The Court holds otherwise only after laboring to establish

two uncontroversial propositions: first, that the constitutional

rights of students in school settings are not

coextensive with the rights of adults, see ante, at 8ñ12;

and second, that deterring drug use by schoolchildren is a

valid and terribly important interest, see ante, at 12ñ14.

As to the first, I take the Courtís point that the message

on Frederickís banner is not necessarily protected speech,

even though it unquestionably would have been had the

banner been unfurled elsewhere. As to the second, I am

willing to assume that the Court is correct that the pressing

need to deter drug use supports JDHSís rule prohibiting

willful conduct that expressly ìadvocates the use of

substances that are illegal to minors.î App. to Pet. for

Cert. 53a. But it is a gross non sequitur to draw from

these two unremarkable propositions the remarkable

conclusion that the school may suppress student speech

that was never meant to persuade anyone to do anything.

In my judgment, the First Amendment protects student

speech if the message itself neither violates a permissible

rule nor expressly advocates conduct that is illegal and

harmful to students. This nonsense banner does neither,

and the Court does serious violence to the First Amendment

in upholdingóindeed, laudingóa schoolís decision to

punish Frederick for expressing a view with which it

disagreed.

I

In December 1965, we were engaged in a controversial

war, a war that ìdivided this country as few other issues

ever have.î Tinker v. Des Moines Independent Community

School Dist., 393 U. S. 503, 524 (1969) (Black, J., dissenting).

Having learned that some students planned to wear

black armbands as a symbol of opposition to the countryís

involvement in Vietnam, officials of the Des Moines public

school district adopted a policy calling for the suspension Cite as: 551 U. S. ____ (2007) 3

STEVENS, J., dissenting

of any student who refused to remove the armband. As we

explained when we considered the propriety of that policy,

ì[t]he school officials banned and sought to punish petitioners

for a silent, passive expression of opinion, unaccompanied

by any disorder or disturbance on the part of

petitioners.î Id., at 508. The district justified its censorship

on the ground that it feared that the expression of a

controversial and unpopular opinion would generate disturbances.

Because the school officials had insufficient

reason to believe that those disturbances would ìmaterially

and substantially interfere with the requirements of

discipline in the operation of the school,î we found the

justification for the rule to lack any foundation and therefore

held that the censorship violated the First Amendment.

Id., at 509 (internal quotation marks omitted).

Justice Harlan dissented, but not because he thought

the school district could censor a message with which it

disagreed. Rather, he would have upheld the districtís

rule only because the students never cast doubt on the

districtís anti-disruption justification by proving that the

rule was motivated ìby other than legitimate school concernsófor

example, a desire to prohibit the expression of

an unpopular point of view while permitting expression of

the dominant opinion.î Id., at 526.

Two cardinal First Amendment principles animate both

the Courtís opinion in Tinker and Justice Harlanís dissent.

First, censorship based on the content of speech, particularly

censorship that depends on the viewpoint

of the speaker, is subject to the most rigorous burden of

justification:

ìDiscrimination against speech because of its message

is presumed to be unconstitutional. . . . When the government

targets not subject matter, but particular

views taken by speakers on a subject, the violation of

the First Amendment is all the more blatant. View-4 MORSE v. FREDERICK

STEVENS, J., dissenting

point discrimination is thus an egregious form of content

discrimination. The government must abstain

from regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker is

the rationale for the restriction.î Rosenberger v. Rector

and Visitors of Univ. of Va., 515 U. S. 819, 828ñ

829 (1995) (citation omitted).

Second, punishing someone for advocating illegal conduct

is constitutional only when the advocacy is likely to provoke

the harm that the government seeks to avoid. See

Brandenburg v. Ohio, 395 U. S. 444, 449 (1969) (per curiam)

(distinguishing ìmere advocacyî of illegal conduct

from ìincitement to imminent lawless actionî).

However necessary it may be to modify those principles

in the school setting, Tinker affirmed their continuing

vitality. 393 U. S., at 509 (ìIn order for the State in the

person of school officials to justify prohibition of a particular

expression of opinion, it must be able to show that its

action was caused by something more than a mere desire

to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint. Certainly where

there is no finding and no showing that engaging in that

conduct would materially and substantially interfere with

the requirements of appropriate discipline in the operation

of the school, the prohibition cannot be sustainedî (internal

quotation marks omitted)). As other federal courts

have long recognized, under Tinker,

ìregulation of student speech is generally permissible

only when the speech would substantially disrupt or

interfere with the work of the school or the rights of

other students. . . . Tinker requires a specific and significant

fear of disruption, not just some remote apprehension

of disturbance.î Saxe v. State College Area

School Dist., 240 F. 3d 200, 211 (CA3 2001) (Alito, J.)

(emphasis added). Cite as: 551 U. S. ____ (2007) 5

STEVENS, J., dissenting

Yet today the Court fashions a test that trivializes the

two cardinal principles upon which Tinker rests. See ante,

at 14 (ì[S]chools [may] restrict student expression that

they reasonably regard as promoting illegal drug useî).

The Courtís test invites stark viewpoint discrimination. In

this case, for example, the principal has unabashedly

acknowledged that she disciplined Frederick because she

disagreed with the pro-drug viewpoint she ascribed to the

message on the banner, see App. 25óa viewpoint, incidentally,

that Frederick has disavowed, see id., at 28. Unlike

our recent decision in Tennessee Secondary School Athletic

Assn. v. Brentwood Academy, 551 U. S. ___, ___ (2007)

(slip op., at 3), see also ante, at 3 (ALITO, J., concurring),

the Courtís holding in this case strikes at ìthe heart of the

First Amendmentî because it upholds a punishment

meted out on the basis of a listenerís disagreement with

her understanding (or, more likely, misunderstanding) of

the speakerís viewpoint. ìIf there is a bedrock principle

underlying the First Amendment, it is that the Government

may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable.î

Texas v. Johnson, 491 U. S. 397, 414 (1989).

It is also perfectly clear that ìpromoting illegal drug

use,î ante, at 14, comes nowhere close to proscribable

ìincitement to imminent lawless action.î Brandenburg,

395 U. S., at 447. Encouraging drug use might well increase

the likelihood that a listener will try an illegal

drug, but that hardly justifies censorship:

ìEvery denunciation of existing law tends in some

measure to increase the probability that there will be

violation of it. Condonation of a breach enhances the

probability. Expressions of approval add to the probability.

. . . Advocacy of law-breaking heightens it still

further. But even advocacy of violation, however reprehensible

morally, is not a justification for denying 6 MORSE v. FREDERICK

STEVENS, J., dissenting

free speech where the advocacy falls short of incitement

and there is nothing to indicate that the advocacy

would be immediately acted upon.î Whitney v.

California, 274 U. S. 357, 376 (1927) (Brandeis, J.,

concurring).

No one seriously maintains that drug advocacy (much less

Frederickís ridiculous sign) comes within the vanishingly

small category of speech that can be prohibited because of

its feared consequences. Such advocacy, to borrow from

Justice Holmes, ìha[s] no chance of starting a present

conflagration.î Gitlow v. New York, 268 U. S. 652, 673

(1925) (dissenting opinion).

II

The Court rejects outright these twin foundations of

Tinker because, in its view, the unusual importance of

protecting children from the scourge of drugs supports a

ban on all speech in the school environment that promotes

drug use. Whether or not such a rule is sensible as a

matter of policy, carving 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.1

See infra, at 14ñ16.

I will nevertheless assume for the sake of argument that

the schoolís concededly powerful interest in protecting its

students adequately supports its restriction on ìany assembly

or public expression that . . . advocates the use of

substances that are illegal to minors . . . .î App. to Pet. for

Cert. 53a. Given that the relationship between schools

and students ìis custodial and tutelary, permitting a

degree of supervision and control that could not be exercised

over free adults,î Vernonia School Dist. 47J v. Acton,

óóóóóó

1 I also seriously question whether such a ban could really be enforced.

Consider the difficulty of monitoring student conversations

between classes or in the cafeteria. Cite as: 551 U. S. ____ (2007) 7

STEVENS, J., dissenting

515 U. S. 646, 655 (1995), it might well be appropriate to

tolerate some targeted viewpoint discrimination in this

unique setting. And while conventional speech may be

restricted only when likely to ìincit[e] imminent lawless

action,î Brandenburg, 395 U. S., at 449, it is possible that

our rigid imminence requirement ought to be relaxed at

schools. See Bethel School Dist. No. 403 v. Fraser, 478

U. S. 675, 682 (1986) (ì[T]he constitutional rights of students

in public school are not automatically coextensive

with the rights of adults in other settingsî).

But it is one thing to restrict speech that advocates drug

use. It is another thing entirely to prohibit an obscure

message with a drug theme that a third party subjectivelyóand

not very reasonablyóthinks is tantamount to

express advocacy. Cf. Masses Publishing Co. v. Patten,

244 F. 535, 540, 541 (SDNY 1917) (Hand, J.) (distinguishing

sharply between ìagitation, legitimate as suchî and

ìthe direct advocacyî of unlawful conduct). Even the

school recognizes the paramount need to hold the line

between, on the one hand, non-disruptive speech that

merely expresses a viewpoint that is unpopular or contrary

to the schoolís preferred message, and on the other

hand, advocacy of an illegal or unsafe course of conduct.

The districtís prohibition of drug advocacy is a gloss on a

more general rule that is otherwise quite tolerant of nondisruptive

student speech:

ìStudents will not be disturbed in the exercise of their

constitutionally guaranteed rights to assemble peaceably

and to express ideas and opinions, privately or

publicly, provided that their activities do not infringe

on the rights of others and do not interfere with the

operation of the educational program.

ìThe Board will not permit the conduct on school

premises of any willful activity . . . that interferes

with the orderly operation of the educational program 8 MORSE v. FREDERICK

STEVENS, J., dissenting

or offends the rights of others. The Board specifically

prohibits . . . any assembly or public expression that

. . . advocates the use of substances that are illegal to

minors . . . .î App. to Pet. for Cert. 53a; see also ante,

at 3 (quoting rule in part).

There is absolutely no evidence that Frederickís bannerís

reference to drug paraphernalia ìwillful[ly]î infringed on

anyoneís rights or interfered with any of the schoolís educational

programs.2 On its face, then, the rule gave Frederick

wide berth ìto express [his] ideas and opinionsî so

long as they did not amount to ìadvoca[cy]î of drug use.

Ibid. If the schoolís rule is, by hypothesis, a valid one, it is

valid only insofar as it scrupulously preserves adequate

space for constitutionally protected speech. When First

Amendment rights are at stake, a rule that ìsweep[s] in a

great variety of conduct under a general and indefinite

characterizationî may not leave ìtoo wide a discretion in

its application.î Cantwell v. Connecticut, 310 U. S. 296,

308 (1940). Therefore, just as we insisted in Tinker that

the school establish some likely connection between the

armbands and their feared consequences, so too JDHS

must show that Frederickís supposed advocacy stands a

meaningful chance of making otherwise-abstemious students

try marijuana.

But instead of demanding that the school make such a

showing, the Court punts. Figuring out just how it punts

is tricky; ì[t]he mode of analysis [it] employ[s] is not entirely

clear,î see ante, at 9. On occasion, the Court suggests

it is deferring to the principalís ìreasonableî judg-

óóóóóó

2 It is also relevant that the display did not take place ìon school

premises,î as the rule contemplates. App. to Pet. for Cert. 53a. While a

separate district rule does make the policy applicable to ìsocial events

and class trips,î id., at 58a, Frederick might well have thought that the

Olympic Torch Relay was neither a ìsocial eventî (for example, prom)

nor a ìclass trip.î Cite as: 551 U. S. ____ (2007) 9

STEVENS, J., dissenting

ment that Frederickís sign qualified as drug advocacy.3 At

other times, the Court seems to say that it thinks the

bannerís message constitutes express advocacy.4 Either

way, its approach is indefensible.

To the extent the Court defers to the principalís ostensibly

reasonable judgment, it abdicates its constitutional

responsibility. The beliefs of third parties, reasonable or

otherwise, have never dictated which messages amount to

proscribable advocacy. Indeed, it would be a strange

constitutional doctrine that would allow the prohibition of

only the narrowest category of speech advocating unlawful

conduct, see Brandenburg, 395 U. S., at 447ñ448, yet

would permit a listenerís perceptions to determine which

speech deserved constitutional protection.5

Such a peculiar doctrine is alien to our case law. In

óóóóóó

3See ante, at 1 (stating that the principal ìreasonably regardedî Frederickís

banner as ìpromoting illegal drug useî); ante, at 6 (explaining

that ìPrincipal Morse thought the banner would be interpreted by those

viewing it as promoting illegal drug use, and that interpretation is

plainly a reasonable oneî); ante, at 8 (asking whether ìa principal may

. . . restrict student speech . . . when that speech is reasonably viewed

as promoting illegal drug useî); ante, at 14 (holding that ìschools [may]

restrict student expression that they reasonably regard as promoting

illegal drug useî); see also ante, at 1 (ALITO, J., concurring) (ì[A] public

school may restrict speech that a reasonable observer would interpret

as advocating illegal drug useî). 4See ante, at 7 (ìWe agree with Morse. At least two interpretations

of the words on the banner demonstrate that the sign advocated the use

of illegal drugsî); ante, at 15 (observing that ì[w]e have explained our

viewî that ìFrederickís banner constitutes promotion of illegal drug

useî). 5The reasonableness of the view that Frederickís message was unprotected

speech is relevant to ascertaining whether qualified immunity

should shield the principal from liability, not to whether her actions

violated Frederickís constitutional rights. Cf. Saucier v. Katz, 533 U. S.

194, 202 (2001) (ìThe relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confrontedî). 10 MORSE v. FREDERICK

STEVENS, J., dissenting

Abrams v. United States, 250 U. S. 616 (1919), this Court

affirmed the conviction of a group of Russian ìrebels,

revolutionists, [and] anarchists,î id., at 617ñ618 (internal

quotation marks omitted), on the ground that the leaflets

they distributed were thought to ìincite, provoke, and

encourage resistance to the United States,î id., at 617

(internal quotation marks omitted). Yet Justice Holmesí

dissentówhich has emphatically carried the dayónever

inquired into the reasonableness of the United Statesí

judgment that the leaflets would likely undermine the war

effort. The dissent instead ridiculed that judgment: ìnobody

can suppose that the surreptitious publishing of a

silly leaflet by an unknown man, without more, would

present any immediate danger that its opinions would

hinder the success of the government arms or have any

appreciable tendency to do so.î Id., at 628. In Thomas v.

Collins, 323 U. S. 516 (1945) (opinion for the Court by

Rutledge, J.), we overturned the conviction of a union

organizer who violated a restraining order forbidding him

from exhorting workers. In so doing, we held that the

distinction between advocacy and incitement could not

depend on how one of those workers might have understood

the organizerís speech. That would ìpu[t] the

speaker in these circumstances wholly at the mercy of the

varied understanding of his hearers and consequently of

whatever inference may be drawn as to his intent and

meaning.î Id., at 535. In Cox v. Louisiana, 379 U. S. 536,

543 (1965), we vacated a civil rights leaderís conviction for

disturbing the peace, even though a Baton Rouge sheriff

had ìdeem[ed]î the leaderís ìappeal to . . . students to sit

in at the lunch counters to be ëinflammatory.íî We never

asked if the sheriffís in-person, on-the-spot judgment was

ìreasonable.î Even in Fraser, we made no inquiry into

whether the school administrators reasonably thought the

studentís speech was obscene or profane; we rather satisfied

ourselves that ì[t]he pervasive sexual innuendo in Cite as: 551 U. S. ____ (2007) 11

STEVENS, J., dissenting

Fraserís speech was plainly offensive to both teachers and

studentsóindeed, to any mature person.î 478 U. S., at

683. Cf. Bose Corp. v. Consumers Union of United States,

Inc., 466 U. S. 485, 499 (1984) (ì[I]n cases raising First

Amendment issues we have repeatedly held that an appellate

court has an obligation to make an independent examination

of the whole record in order to make sure that

the judgment does not constitute a forbidden intrusion on

the field of free expressionî (internal quotation marks

omitted)).6

To the extent the Court independently finds that

ìBONG HiTS 4 JESUSî objectively amounts to the advocacy

of illegal drug useóin other words, that it can most

reasonably be interpreted as suchóthat conclusion practically

refutes itself. This is a nonsense message, not advocacy.

The Courtís feeble effort to divine its hidden meaning

is strong evidence of that. Ante, at 7 (positing that the

óóóóóó

6This same reasoning applies when the interpreter is not just a listener,

but a legislature. We have repeatedly held that ì[d]eference to a

legislative findingî that certain types of speech are inherently harmful

ìcannot limit judicial inquiry when First Amendment rights are at

stake,î reasoning that ìthe judicial function commands analysis of

whether the specific conduct charged falls within the reach of the

statute and if so whether the legislation is consonant with the Constitution.î

Landmark Communications, Inc. v. Virginia, 435 U. S. 829,

843, 844 (1978); see also Whitney v. California, 274 U. S. 357, 378ñ379

(1927) (Brandeis, J., concurring) (ì[A legislative declaration] does not

preclude enquiry into the question whether, at the time and under the

circumstances, the conditions existed which are essential to validity

under the Federal Constitution. . . . Whenever the fundamental rights

of free speech and assembly are alleged to have been invaded, it must

remain open to a defendant to present the issue whether there actually

did exist at the time a clear danger; whether the danger, if any, was

imminent; and whether the evil apprehended was so substantial as to

justify the stringent restriction interposed by the legislatureî). When

legislatures are entitled to no deference as to whether particular speech

amounts to a ìclear and present danger,î id., at 379, it is hard to

understand why the Court would so blithely defer to the judgment of a

single school principal. 12 MORSE v. FREDERICK

STEVENS, J., dissenting

banner might mean, alternatively, ìë[Take] bong hits,íî

ìëbong hits [are a good thing],íî or ìë[we take] bong hitsíî).

Frederickís credible and uncontradicted explanation for

the messageóhe just wanted to get on televisionóis also

relevant because a speaker who does not intend to persuade

his audience can hardly be said to be advocating

anything.7 But most importantly, it takes real imagination

to read a ìcrypticî message (the Courtís characterization,

not mine, see ibid., at 6) with a slanting drug reference

as an incitement to drug use. Admittedly, some high

school students (including those who use drugs) are dumb.

Most students, however, do not shed their brains at the

schoolhouse gate, and most students know dumb advocacy

when they see it. The notion that the message on this

banner would actually persuade either the average student

or even the dumbest one to change his or her behavior

is most implausible. That the Court believes such a

silly message can be proscribed as advocacy underscores

the novelty of its position, and suggests that the principle

it articulates has no stopping point.

Even if advocacy could somehow be wedged into Frederickís

obtuse reference to marijuana, that advocacy was at

best subtle and ambiguous. There is abundant precedent,

including another opinion THE CHIEF JUSTICE announces

today, for the proposition that when the ìFirst Amendment

is implicated, the tie goes to the speaker,î Federal

Election Commín v. Wisconsin Right to Life, Inc., 551 U. S.

___ (2007) (slip op., at 21) and that ìwhen it comes to

defining what speech qualifies as the functional equivalent

of express advocacy . . . we give the benefit of the doubt to

speech, not censorship,î post, at 29. If this were a close

óóóóóó

7 In affirming Frederickís suspension, the JDHS superintendent acknowledged

that Frederick displayed his message ìfor the benefit of

television cameras covering the Torch Relay.î App. to Pet. for Cert.

62a. Cite as: 551 U. S. ____ (2007) 13

STEVENS, J., dissenting

case, the tie would have to go to Frederickís speech, not to

the principalís strained reading of his quixotic message.

Among other things, the Courtís ham-handed, categorical

approach is deaf to the constitutional imperative to

permit unfettered debate, even among high-school students,

about the wisdom of the war on drugs or of legalizing

marijuana for medicinal use.8 See Tinker, 393 U. S., at

511 (ì[Students] may not be confined to the expression of

those sentiments that are officially approvedî). If Frederickís

stupid reference to marijuana can in the Courtís view

justify censorship, then high school students everywhere

could be forgiven for zipping their mouths about drugs at

school lest some ìreasonableî observer censor and then

punish them for promoting drugs. See also ante, at 2

(BREYER, J., concurring in judgment in part and dissenting

in part).

Consider, too, that the school districtís rule draws no

distinction between alcohol and marijuana, but applies

evenhandedly to all ìsubstances that are illegal to mi-

óóóóóó

8The Courtís opinion ignores the fact that the legalization of marijuana

is an issue of considerable public concern in Alaska. The State

Supreme Court held in 1975 that Alaskaís constitution protects the

right of adults to possess less than four ounces of marijuana for personal

use. Ravin v. State, 537 P. 2d 494 (Alaska). In 1990, the voters of

Alaska attempted to undo that decision by voting for a ballot initiative

recriminalizing marijuana possession. Initiative Proposal No. 2, ßß1ñ2

(effective Mar. 3, 1991), 11 Alaska Stat., p. 872 (Lexis 2006). At the

time Frederick unfurled his banner, the constitutionality of that referendum

had yet to be tested. It was subsequently struck down as

unconstitutional. See Noy v. State, 83 P. 3d 538 (Alaska App. 2003). In

the meantime, Alaska voters had approved a ballot measure decriminalizing

the use of marijuana for medicinal purposes, 1998 Ballot

Measure No. 8 (approved Nov. 3, 1998), 11 Alaska Stat., p. 882 (codified

at Alaska Stat. ßß11.71.090, 17.37.010ñ17.37.080), and had rejected a

much broader measure that would have decriminalized marijuana

possession and granted amnesty to anyone convicted of marijuanarelated

crimes, see 2000 Ballot Measure No. 5 (failed Nov. 7, 2000), 11

Alaska Stat., p. 886. 14 MORSE v. FREDERICK

STEVENS, J., dissenting

nors.î App. to Pet. for Cert. 53a; see also App. 83 (expressly

defining ìëdrugsíî to include ìall alcoholic beveragesî).

Given the tragic consequences of teenage alcohol

consumptionódrinking causes far more fatal accidents

than the misuse of marijuanaóthe school districtís interest

in deterring teenage alcohol use is at least comparable

to its interest in preventing marijuana use. Under the

Courtís reasoning, must the First Amendment give way

whenever a school seeks to punish a student for any

speech mentioning beer, or indeed anything else that

might be deemed risky to teenagers? While I find it hard

to believe the Court would support punishing Frederick

for flying a ìWINE SiPS 4 JESUSî bannerówhich could

quite reasonably be construed either as a protected religious

message or as a pro-alcohol messageóthe breathtaking

sweep of its opinion suggests it would.

III

Although this case began with a silly, nonsensical banner,

it ends with the Court inventing out of whole cloth a

special First Amendment rule permitting the censorship of

any student speech that mentions drugs, at least so long

as someone could perceive that speech to contain a latent

pro-drug message. Our First Amendment jurisprudence

has identified some categories of expression that are less

deserving of protection than othersófighting words, obscenity,

and commercial speech, to name a few. Rather

than reviewing our opinions discussing such categories, I

mention two personal recollections that have no doubt

influenced my conclusion that it would be profoundly

unwise to create special rules for speech about drug and

alcohol use.

The Vietnam War is remembered today as an unpopular

war. During its early stages, however, ìthe dominant

opinionî that Justice Harlan mentioned in his Tinker

dissent regarded opposition to the war as unpatriotic, if Cite as: 551 U. S. ____ (2007) 15

STEVENS, J., dissenting

not treason. 393 U. S., at 526. That dominant opinion

strongly supported the prosecution of several of those who

demonstrated in Grant Park during the 1968 Democratic

Convention in Chicago, see United States v. Dellinger, 472

F. 2d 340 (CA7 1972), and the vilification of vocal opponents

of the war like Julian Bond, cf. Bond v. Floyd, 385

U. S. 116 (1966). In 1965, when the Des Moines students

wore their armbands, the school districtís fear that they

might ìstart an argument or cause a disturbanceî was well

founded. Tinker, 393 U. S., at 508. Given that context,

there is special force to the Courtís insistence that ìour

Constitution says we must take that risk; and our history

says that it is this sort of hazardous freedomóthis kind of

opennessóthat is the basis of our national strength and of

the independence and vigor of Americans who grow up

and live in this relatively permissive, often disputatious,

society.î Id., at 508ñ509 (citation omitted). As we now

know, the then-dominant opinion about the Vietnam War

was not etched in stone.

Reaching back still further, the current dominant opinion

supporting the war on drugs in general, and our antimarijuana

laws in particular, is reminiscent of the opinion

that supported the nationwide ban on alcohol consumption

when I was a student. While alcoholic beverages are now

regarded as ordinary articles of commerce, their use was

then condemned with the same moral fervor that now

supports the war on drugs. The ensuing change in public

opinion occurred much more slowly than the relatively

rapid shift in Americansí views on the Vietnam War, and

progressed on a state-by-state basis over a period of many

years. But just as prohibition in the 1920ís and early

1930ís was secretly questioned by thousands of otherwise

law-abiding patrons of bootleggers and speakeasies, today

the actions of literally millions of otherwise law-abiding 16 MORSE v. FREDERICK

STEVENS, J., dissenting

users of marijuana,9 and of the majority of voters in each

of the several States that tolerate medicinal uses of the

product,10 lead me to wonder whether the fear of disapproval

by those in the majority is silencing opponents of

the war on drugs. Surely our national experience with

alcohol should make us wary of dampening speech suggestingóhowever

inarticulatelyóthat it would be better

to tax and regulate marijuana than to persevere in a futile

effort to ban its use entirely.

Even in high school, a rule that permits only one point

of view to be expressed is less likely to produce correct

answers than the open discussion of countervailing views.

Whitney, 274 U. S., at 377 (Brandeis, J., concurring);

Abrams, 250 U. S., at 630 (Holmes, J., dissenting); Tinker,

393 U. S., at 512. In the national debate about a serious

issue, it is the expression of the minorityís viewpoint that

most demands the protection of the First Amendment.

Whatever the better policy may be, a full and frank discussion

of the costs and benefits of the attempt to prohibit

the use of marijuana is far wiser than suppression of

speech because it is unpopular.

I respectfully dissent.

óóóóóó

9See Gonzales v. Raich, 545 U. S. 1, 21, n. 31 (2005) (citing a Government

estimate ìthat in 2000 American users spent $10.5 billion on

the purchase of marijuanaî). 10 Id., at 5 (noting that ìat least nine States . . . authorize the use of

marijuana for medicinal purposesî).