Justice Samuel Alito strongly defended the expression of “controversial, offensive, or disfavored views” in a case concerning a Massachusetts middle school student who faced punishment for wearing a T-shirt with political messages.

In dissenting from the decision not to review the case of Morrison v. Town of Middleborough, the justice criticized his fellow judges for letting “confusion” persist about correctly applying established First Amendment case law. The full dissent can be accessed here.

In the case, Liam Morrison, a 7th grader at the time, protested his school’s LGBTQ Pride day by wearing a T-shirt reading “There Are Only Two Genders” to class and was promptly sent home. In the ensuing days, more protesters and counterprotesters joined the dispute — but picketed outside the school grounds. Morrison, back at school, wore the T-shirt with the word “CENSORED” taped over “Only Two” and was again punished by administrators.

The student sued on First Amendment grounds and lost at the district and appellate court levels. In rejecting his petition, the U.S. Supreme Court leaves in place the 1st U.S. Circuit’s ruling in the school’s favor.

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Alito casts the court’s decision as an affront to freedom of speech and a missed opportunity to reiterate and clarify First Amendment doctrine as it applies to the rights of public school students.

In the dispute, all sides agree the controlling case here is the landmark 1968 opinion in Tinker v. Des Moines — a case involving a group of anti-Vietnam War students who wore black protest armbands to their public school and were sanctioned. The high court, however, rebuked the school district and affirmed the notion that free speech rights are not relinquished when students enter schools — but allowed administrators some degree of latitude to censor student speech that “materially and substantially interferes” with instruction.

The major issue is whether or not Morrison’s treatment by Nichols Middle School (NMS) was in line with the Tinker framework. Alito says the school — and the reviewing courts — clearly went beyond.

“The First Circuit held that the school did not violate L.M.’s free-speech rights,” the dissent reads. “It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines.”

To hear Alito tell it, Morrison was attempting to “register his dissent and start a dialogue on the topic” of gender identity — a viewpoint the school in question allegedly enforces.

Left: Liam Morrison is pictured (Alliance Defending Freedom). Right: a shirt like the one Morrison wore to school is shown (CBS News).

“NMS promotes the view that gender is a fluid construct and that a person’s self-defined identity — not biological sex — determines whether that person is male, female, or something else,” Alito writes.

Morrison, of course, rejects that view but is not the only student who has worn a T-shirt expressing a position on the basic topic.

After the suspension, the student’s father called to complain and pointed out that the school itself, in a social media post, seemingly endorsed a position on gender identity by sharing an image of a student wearing a T-shirt reading: “HE SHE THEY IT’S ALL OKAY.”

The school district’s superintendent countered that Morrison’s T-shirt violated the dress code by “target[ing] students of a protected class; namely in the area of gender identity.”

Here, Alito sees hypocrisy and danger — that the government is restricting expression “because of its message.” He says “these freedom-of-speech harms become ‘all the more blatant’ when the government ‘targets not subject matter, but particular views taken by speakers on a subject.’” And, the justice notes, there is not “a carveout from this principle for controversial, offensive, or disfavored views.”