This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why Justice Stevens’ argument—that Frederick’s message was “stupid” and that he was just seeking attention—was wholly unconvincing to the majority, which was disturbed by those very aspects of Frederick’s speech. It also helps to explain Justice Alito’s concurrence, in which he distinguished between Frederick’s speech and any speech that could “plausibly be interpreted as commenting on any political or social issue.” What harmed Frederick was that his speech minimized the seriousness of drug use while lacking the redeeming value of conveying a genuine message. In Justice Alito’s eyes, a thoughtful argument for legalizing marijuana would deserve more protection than Frederick’s banner, regardless of whether the former might actually have greater potential to persuade at least some students to experiment with it. I conclude with some reflections about why the Court left Morse’s educational rationale in the subtext, rather than explicitly articulating it, and what this suggests for how the Supreme Court is approaching student speech cases.
Emily Gold Waldman, No Jokes About Dope: Morse v. Frederick's Educational Rationale, 82 UMKC L. Rev. 685 (2013), http://digitalcommons.pace.edu/lawfaculty/896/.