Right-wing justices decry limits to speech — that they 'helped make possible'

Far-right Supreme Court justices Clarence Thomas and Samuel Alito bitterly dissented from the broader court's refusal to take up a free speech case involving a Massachusetts middle school student prohibited from wearing a "There Are Only Two Genders" T-shirt Tuesday — but they helped create the precedent that limited students' free speech rights in school in the first place, Jordan Rubin wrote for MSNBC's Deadline: White House blog.

"In the T-shirt case, called L.M. v. Middleborough, Thomas and Alito each wrote dissents. Both are notable, especially since both justices have (in different ways) previously ruled against students in First Amendment cases," wrote Rubin.

What's particularly noteworthy, he added, is that Thomas and Alito cited different reasonings for disagreeing with the court's majority.

Thomas, for his part, has maintained that the original ruling that protected students' free speech rights except when disruptive, Tinker v. Des Moines, was always wrongly decided. “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools,” he said — however, he argued the court should hear this case because, “unless and until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply.”

Both Thomas and Alito joined the majority in a 2007 case curtailing speech in schools, called Morse v. Frederick, Rubin wrote. "That one involved a high school principal ordering students at a school-supervised event to take down a banner that said, 'BONG HiTS 4 JESUS.' The Supreme Court split 5-4, siding with the school and finding no First Amendment violation for confiscating what the court called 'the pro-drug banner' and suspending the student responsible. Thomas and Alito were both in the majority in that case."

Alito, in contrast to Thomas, has maintained students do have a right to political speech in school — but has worked to carve up and draw lines in that right, like the "BONG HITS" banner.

He joined the opinion in Morse, noted Rubin, “on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it 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.’” In so doing, he reserved the right to uphold speech in a case like L.M., where he agrees with it.

"While Alito sought to cabin his Morse concurrence to the drug context, and while a shirt about gender can be distinguishable from that context, it’s cases like Morse that Alito and Thomas made possible that also helped make possible the appeals court ruling that the Supreme Court just declined to review," Rubin concluded.