When she saw the banner, high school principal Deborah Morse crossed the street, confronted Frederick, and – in the words of the appeals court -- “grabbed and crumpled up the banner.” Morse also suspended Frederick from school for ten days.

The heart of the case lies in Morse's decision to confiscate and destroy the student's banner. In its own small way, Morse’s action falls into the ugly category of book burnings, censorship boards, and court orders ensuring that newspapers do not see the light of day.

Under the First Amendment doctrine of “prior restraint,” speech cannot simply be silenced, prior to a final determination of whether it is constitutionally protected. Rather, the rule is: Speak first, and pay damages, if necessary, later.

Morse, however, seems to have slept through this point in her own high school civics class. (Frederick may have been paying closer attention in his: He says that when she took the banner from him, he quoted Thomas Jefferson.)

The Supreme Court seems inclined to let Morse off the hook, with respect to any personal liability on her part, on the ground that the constitutional rules here were unclear.

Chief Justice Roberts asked Frederick’s attorney, “And so it should be perfectly clear to [the principal] what she could and could not do?” Frederick’s attorney replied: “Yes.” Then, Justice Scalia piped up : “As it is to us, right?” His quip elicited laughter.

Let’s suppose Scalia is right, and it was unclear whether there were grounds for suspending Frederick.

Was it truly unclear to Morse whether she could grab the banner and confiscate it?

Would it have been similarly unclear to her whether she could, say grab a paperback Frederick was holding – such as the pro-marijuana It’s Just a Plant -- throw it in the gutter, and put a match to it?

School is supposed to be a place where students' views are developed, not destroyed.