By James F. Tierney
In a story we missed when it first broke a month ago, a federal appellate court upheld a Texas school's decision to suspend the high school sophomore for writing a violent fictional short story that school administrators interpreted to be a "terroristic threat." According to the Student Press Law Center, the Fifth Circuit decision "relied heavily on Supreme Court Justice Samuel Alito's opinion" in the "Bong Hits 4 Jesus" case that came down this summer -- Morse v. Frederick. Alito's decision in that case had limited the scope of legitimate school censorship to "'speech that a reasonable person would interpret as advocating illegal drug use' and did not extend to any political or social commentary." [emphasis added] By contrast, in Ponce v. Socorro the Fifth Circuit divined a much broader rule that it determined was implicit in Morse, holding that "speech advocating a harm that is demonstrably grave and that derives that gravity from the 'specific danger' to the physical safety of students arising from the school environment is unprotected." [emphasis added] It looks like the family of the student is considering whether to ask the full membership of the Fifth Circuit to rehear the case; even if they do, it's by no means certain that the whole court will agree to do so. We'll follow the story and post if more details come in.