U.S. Supreme Court Justice Samuel Alito quoted himself from nearly 20 years earlier in a dissent on Tuesday after his colleagues on the bench decided against hearing a case about a junior high student who wore a shirt stipulating that there are only two genders.
Why It Matters
Free speech and First Amendment cases are routine, sometimes reaching the High Court. That was the hope for Liam Morrison, formerly an eighth grader at Middleborough Public Schools in Massachusetts, who in 2023 sued the district after being forced to remove and no longer wear a T-shirt reading, “There are only two genders.”
He was also barred from wearing an alternate version of the shirt with the words “two genders” covered up by tape, accompanied by the word “censored” written on it.
What To Know
The Supreme Court rejected taking the case, instead leaving the initial federal appeals court ruling in place—choosing not to challenge educators’ decision on the basis of the district being an inclusive environment for transgender and gender-nonconforming students.
“The court erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle proclaimed only in ‘recent decisions’ like Matal or Iancu,” Alito wrote in his dissent. “To the contrary, viewpoint neutrality has long been seen as going to ‘the very heart of the First Amendment.’ The First Circuit was wrong to expel this bedrock constitutional safeguard from our schools.”
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Alito’s mention of “the very heart of the First Amendment” is a line he wrote verbatim in 2007 as part of his concurring opinion in the case Morse v. Frederick, also about a student who was suspended from his school for what he argued was a violation of his free speech.
In that case, argued and decided between March and June 2007, a student, among others, at a school-sanctioned and school-supervised event, unfurled a banner stating “BONG HiTS 4 JESUS.” School officials directed students to take down the banner due to the promotion of illegal drug use and a violation of school policy.
But one student—Frederick, the petitioner—did not comply and was suspended for 10 days. A lower court found a First Amendment violation, though the Supreme Court felt otherwise.
“During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission,” Alito wrote in his concurring opinion in 2007. “Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war.
“The ‘educational mission’ argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment.”
Tinker references the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, which upheld the right of public school students to wear black armbands to protest the Vietnam War if education was not interrupted.
The longtime justice also agreed “that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use,” adding that the Court provides no support “for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'”
Alito said this newly rejected case involves a school that “permitted and indeed encouraged student expression endorsing the view that there are many genders,” whereas opposing viewpoints, such as Morrison’s, were not allowed.
“This case presents an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive,” he wrote.
What People Are Saying
Attorney David Seltzer, managing partner at Seltzer Mayberg, to Newsweek: “Gender is a cultural focus in today’s world, both politically and in our legal system. There are so many ways to address this topic, but our constitution dictates that free speech control, and nothing more. Justices Samuel Alito and Clarence Thomas dissented in that this should have been heard, and that the schools actions are akin to suppression of free speech. The Supreme Court should have addressed this matter, but they chose to punt it, and that sets a different kind of precedent on what we as a society now need to interpret under free speech.”
Liam Morrison in February 2024: “This isn’t just about the shirt. It’s about free speech. All students have a constitutional right to express their free speech without fear of being punished by school officials.”
Attorney Dave Courtman of Alliance Defending Freedom, and Morrison’s counsel, in February 2024: “The problem is the school district itself waded into a controversial cultural issue, which it certainly is welcome to do. But then it took sides in the debate, and that’s certainly way across the constitutional line.”
What Happens Next
The rejected case will remain so due to the Supreme Court’s rejection.
Other similar cases the Court has heard in recent years have included those regarding transgender medical care, Title VII cases, and discrimination based on sexual orientation and gender identity.
