Students and Obscenity

At the University of Washington and Lee‘s branch of the American Constitution Society event last Thursday, I heard Rodney Smolla (Dean of that university’s First Amendment issues: the speech rights of high school students (on which contrast here and here), and First Amendment law on obscenity.

High School Speech
(Insert High School Musical joke to taste here).

'Bong Hits 4 Jesus' protest, via WSJ.The first case he discussed was Morse v Frederick 551 US __ (2007) (Justice Talking (NPR) | oyez | wikipedia), in which the Supreme Court had to decide whether a banner bearing the slogan “Bong Hits 4 Jesus” at a school outing to watch the Olympic torch run through town (though not on school property) got First Amendment protection. Roberts CJ held that, because schools may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use, the school did not violate the First Amendment by confiscating the banner and suspending the student.

Dean Smolla argued that there were three key elements to Roberts CJ’s reasoning. First, although it was not on school property, he held that it was a formal school event, because it was an organised school outing where the school cheerleaders cheered, the school band played, the school conduct rules applied, and the teachers were monitoring [that’s how the petitioner got caught in the first place]. As a consequence, the applicable First Amendment doctrines were not its general protections (Smolla instanced Cohen v California 403 US 15 (1971), discussed on this blog here) but the more diminished safeguards in school speech cases.

Second, Roberts CJ held that the cryptic slogan on the student’s banner could reasonably be interpreted as promoting illegal drug use, as the principal had. This student intended it is a meaningless comment (“it doesn’t mean nothing”, he insisted) designed to get himself on television, but the principal took a dim view what she saw as a pro-drug message, and Roberts CJ held that it was reasonable of her to see it that way.

Third, the question then became whether the reduced First Amendment protections in a school setting nevertheless protected speech advocating illegal drug use. Smolla explained that there were two lines of authority. One, relatively protective of school speech, was constructed upon Tinker v Des Moines Independent Community School District 393 US 503 (1969) in which the Supreme Court held that the wearing of black armbands in school to protest the Vietnam war was protected. The other, more deferential to the schools, was constructed upon Bethel School District No 403 v Fraser 478 US 675 (1988), where the Supreme Court held that the First Amendment did not prevent the school from disciplining the student running for student body president for giving an offensive speech, and Hazelwood School District v Kuhlmeier 484 US 260 (1988), where the Court held that the school did not have to tolerate an article in the school newspaper inconsistent with its basic educational mission. Smolla said that Roberts CJ admitted the tension between these competing lines of authority, but didn’t resolve it. This is true. Nevertheless, in my view, Tinker didn’t fare so well at his hands, so that I think he implicitly plumped for Betheland Hazelwood.

In any event, Smolla continued that in the next section of his judgment, Roberts CJ said that the case was about drugs, a giant problem for society in general and for children for schools in particular; and, he held as a consequence that it was not unreasonable for a school official to object to the advocacy of illegal drug use on school property or on school outings.

Smolla also observed that Alito J (joined by Kennedy J) wrote a concurring opinion to say that if the slogan had political content, then they might have held in favour of the student, but because it didn’t have such content, they joined the majority. He referred briefly to the powerful concurring opinion of Thomas J who would have overruled Tinker outright as without basis in the Constitution (Smolla speculated that this might reflect the upbringing discussed in his recent autobiography). And he mentioned Stevens J’s dissent (joined by Ginsburg) approved of Tinker and would have held that the sanction on the student constituted impermissible view viewpoint discrimination (the principal wouldn’t have reacted the same way if the banner had been against illegal drug use – “Jesus says No Bong Hits”, or something like that, presumably).

Prof Ronald Krotoszynski (also here) has an excellent comparative discussion of the implications of this case at On Winning, Losing, and Things Inbetween: A (Preliminary) Comparative Legal Analysis, concluding:

… I believe the case had a lot to do with how much federal judicial oversight do we want when it comes to day-to-day public school administration. I would think that most other cultures are puzzled by the the litigiousness of American society. And where litigation-averse attitudes prevail, I would think that Frederick’s lawsuit would likely fail.

(Insert bad joke to taste here)

Dean Smolla then turned to an obscenity case currently pending before the Court. It is, in his view, a really difficult case relating to virtual child porn, and he provided some background on the First Amendment issues involved. The Court has long held that obscenity gets no First Amendment protection whatsoever (see, eg, Roth v US 354 US 476 (1957), though it has flip-flopped a bit on what constitutes obscenity. The leading case is now Miller v California 413 US 15 (1973), which held that a work is obscene and can be regulated by a State where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Moveover, in Stanley v Georgia 394 US 557 the Court held the First Amendment prohibits making mere private possession of obscene material a crime.

However, in New York v Ferber 458 US 747 (1982) the Court held that child pornography featuring real children is outside the ambit of Miller. And in Osborne v Ohio 495 US 103 (1990), the Court held that, despite Stanley, possession of child pornography can indeed be made criminal. As a consequence, Congress has sought to arrest the flood of child pornography on the internet. However, in Ashcroft v Free Speech Coalition the Supreme Court held that Congress could not make virtual child pornography illegal by the Child Pornography Prevention Act of 1996 (for the sake of completeness, I should mention that the following month, in Ashcroft v ACLU 535 US 564 (2002) the Court also examined other regulations of internet pornography by the Communications Decency Act of 1996). Congress returned to this arena with the PROTECT Act of 2003 (wikipedia) under which Michael Williams who was convicted in Federal District Court of “pandering” (promoting) child pornography. The Court of Appeals for the Eleventh Circuit reversed (US v Williams 444 F 3d 1286 (11th Cir. 2006) (pdf)). The Court held that much of what was caught by the PROTECT Act meets the Miller standard for obscenity and could thus be regulated; that where actual children were used to produce child pornography, this can be regulated under Ferber; and that where virtual child pornography is made available for sale, it’s false advertising and could again be regulated; but where the law sought to regulate not-for-profit distribution of virtual child pornography, that was unconstitutional under Ashcroft, and the Act was therefore overbroad. The Supreme Court granted cert on the following question (pdf) (previewed here, with briefs):

Section 2252A(a)(3)(B) of Title 18 (Supp. IV 2004) prohibits “knowingly … advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] … any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material” is illegal child pornography.

The question presented is whether Section 2252A(a)(3)(B) is overly broad and impermissibly vague, and thus facially unconstitutional.

It’s due to be argued on 30 October 20087; the LII has an excellent and detailed preview here; and there is a comprehensive set of resources on SCOTUSblog wiki. The case will tell a lot as to whether the last two appointments on the Court will take a classical First Amendment view or a crusading cultural conservative view of the issue.