“Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation,” Mr. Starr, a former solicitor general, told the justices in the opening moments of his argument on Monday.
In other words, his approach was to present the free-speech case as a drug case and argue that whatever rights students may have under the First Amendment to express themselves, speaking in oblique or even in arguably humorous dissent from a school’s official antidrug message is not one of them.
That was Mr. Starr’s story, and he stuck with it, through a series of hypothetical questions from the justices and on into a one-minute rebuttal at the end of the lively hour. While Mr. Starr may not prevail on the full breadth of his argument, his strategy appeared on the verge of succeeding well enough to shield his clients, the Juneau School Board and Deborah Morse, the high school principal, from having to pay damages to the student, Joseph Frederick.
A majority of the court seemed willing to create what would amount to a drug exception to students’ First Amendment rights, much as the court has in recent years permitted widespread drug testing of students, even those not personally suspected of using drugs, under a relaxed view of the Fourth Amendment prohibition against unreasonable searches.
Mr. Starr’s biggest ally on the court was the man who once worked as his deputy in the solicitor general’s office, Chief Justice John G. Roberts Jr. The chief justice intervened frequently throughout both sides of the argument, making clear his view that schools need not tolerate student expression that undermines what they define as their educational mission.
“Why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda?” Chief Justice Roberts asked Mr. Starr.
The question was particularly interesting because Mr. Starr had just sought to reassure the court that his argument was not limitless. The court’s leading precedent on student speech, a 1969 decision called Tinker v. Des Moines School District, “articulates a baseline of political speech” that students have a presumptive right to engage in, Mr. Starr said.
That was too far to the middle for the chief justice. “Presumably, the teacher’s agenda is a little bit different and includes things like teaching Shakespeare or the Pythagorean theorem,” he said, adding that “just because political speech is on the student’s agenda, I’m not sure that it makes sense to read Tinker so broadly as to include protection of that speech.”
And later, Chief Justice Roberts took issue with a suggestion by the student’s lawyer, Douglas K. Mertz, that schools that seek to inculcate an antidrug message must permit students, outside the formal classroom setting, to offer competing views. “Content neutrality is critical here,” Mr. Mertz said.
“Where does that notion that our schools have to be content neutral” come from, the chief justice wanted to know. He added, “I thought we wanted our schools to teach something, including something besides just basic elements, including character formation and not to use drugs.”
Mr. Mertz clarified his point. “There is no requirement of equal time or that it be neutral,” he said. The school should be able to express a viewpoint, he continued, but “in the lunchroom, outside in recess, across the street, that is a quintessentially open forum where it would not be proper, I think, to tell students you may not mention this subject, you may not take this position.”
One issue in this case, Morse v. Frederick, No. 06-278, was the nature of the event at which the student unfurled his provocative banner. Edwin S. Kneedler, a deputy solicitor general who shared Mr. Starr’s argument time and presented the Bush administration’s position in support of the school, said the torch event was the equivalent of a school assembly, with students attending under their teachers’ supervision and under the school’s jurisdiction.
Mr. Mertz said it was basically a public event in a public place. In that context, he argued, the sign was not disruptive.
The distinction matters, because under the Tinker precedent, student speech can lose its protected status if it is unduly disruptive.
Justice Anthony M. Kennedy took issue with Mr. Mertz’s characterization of the display as not being disruptive.
“It was completely disruptive of the message, of the theme that the school wanted to promote,” Justice Kennedy said, adding: “Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school’s image that they wanted to portray in sponsoring the Olympics.”
As in many other cases, Justice Kennedy’s vote may prove crucial to the outcome. This case presents a particular challenge for him. While he is perhaps the most speech-protective of the justices, he is also highly pro-government on issues involving illegal drugs.
Justice Samuel A. Alito Jr. asked a series of questions suggesting that his sympathies lay with the student rather than the school. That would be consistent with a decision he wrote six years ago as a judge on the United States Court of Appeals for the Third Circuit that struck down a Pennsylvania school district’s speech code.
In that case, Saxe v. State College Area School District, Judge Alito said the policy “strikes at the heart of moral and political discourse — the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment.” His opinion was based on an interpretation of the Tinker precedent that was notably more robust than that put forward on Monday by Mr. Starr and Mr. Kneedler and, seemingly, by Chief Justice Roberts.
During the argument, Justice Alito interrupted Mr. Kneedler as the deputy solicitor general was asserting that a school “does not have to tolerate a message that is inconsistent” with is basic educational mission.
“I find that a very, very disturbing argument,” Justice Alito said, “because schools have defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students under the banner of getting rid of speech that’s inconsistent with educational missions.”
In response, Mr. Kneedler said that for that reason, “it would make a lot of sense” for the court to issue a narrow ruling limited to student advocacy of illegal conduct in general or drug use in particular.
This was Mr. Starr’s third argument in a high-profile Supreme Court case since the last chapter of his public career, as the independent counsel in the various investigations of President Bill Clinton. He appeared before the court in the 2003 case that challenged the McCain-Feingold campaign finance law and the next year in case on the recitation of the phrase “under God” in the Pledge of Allegiance.