In a June 25, 2007 ruling, the U.S. Supreme Court said that public school officials do not offend the First Amendment rights of their students when they seek to “restrict student expression that they reasonably regard as promoting illegal drug use.”
The Court’s 5 to 4 ruling in Morse v. Frederick, No. 06-278, reversed an earlier decision in the Ninth Circuit U.S. Court of Appeals and said that public high school principal Deborah Morse did not violate 18-year-old Joseph Frederick’s First Amendment rights when she reprimanded and suspended him for unfurling a banner reading “BONG HiTS 4 JESUS” across the street from the school during a televised sporting event, because the banner appeared to promote the use of illegal drugs.
Some commentators have said the Court’s decision erodes student free speech by creating a “drug exception” to the First Amendment in public schools, but others have focused on the narrow scope of the court’s majority and concurring opinions.
Chief Justice John Roberts wrote the majority opinion,which was joined by Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas. Justice Stephen Breyer concurred in part and dissented in part. Justices Ruth Bader Ginsburg and David Souter joined a dissent by Justice John Paul Stevens.
In January 2002, during a parade marking the passing of the Olympic Torch through Juneau, Alaska, Frederick and some fellow students who were standing across the street from Juneau-Douglas High School unfurled the 14-foot long banner. Principal Morse crossed the street and pulled the banner down. Frederick resisted, and Morse responded with a ten-day suspension for violating a school policy against displaying offensive material, including that which advertises or promotes use of illegal drugs.
Frederick appealed the suspension, first to the school district superintendent, and then through a suit in the U.S. District Court for the District of Alaska under 42 U.S.C. section 1983, alleging the school board and Morse violated his First Amendment rights. Both the superintendent and the district court upheld Frederick’s suspension.
In March 2006, the Ninth Circuit U.S. Court of Appeals vacated and remanded the district court’s ruling, based on the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which held that student speech could be restricted only if school officials reasonably “forecast substantial disruption of or material interference with school activities.”
The U.S. Supreme Court granted certiorari and heard oral arguments in Morse v. Frederick on March 19, 2007.
Chief Justice Roberts’ majority opinion begins with a brief discussion of Supreme Court precedent on student speech. “Our cases make clear that students do not ‘shed their constitutional rights to free speech or expression at the schoolhouse gate,’” said Roberts’ opinion, quoting the Tinker decision. However, the majority observed that subsequent cases Bethel School District No. 43 v. Fraser, 478 U.S. 675 (1986) and Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) have said that students’ rights while in public schools are not necessarily “coextensive” with those of adults, particularly “in light of the special characteristics of the school environment.”
The majority opinion rejected Frederick’s arguments that because he stood on a public street after students had been released to attend the event the case was not “a school speech case,” and that the phrase “BONG HiTS 4 JESUS” was “just nonsense meant to attract television cameras.”
Because the event happened during “normal school hours” and “was sanctioned by … Morse ‘as an approved social event or class trip,’” the majority ruled that the case involved school speech. The court noted that this was also the finding of “every other authority to address the question.”
Despite calling the message on Frederick’s banner “cryptic,” the majority said that the phrase may reasonably be interpreted as promoting or celebrating drug use: “[Take] bong hits…”, “Bong hits [are a good thing]…” or “[We take] bong hits…” For this reason, the majority said Morse reasonably believed the banner’s message violated the school’s policy on material which advertises or promotes use of illegal drugs.
“Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs,” Roberts wrote.
Returning to precedent, Roberts’ opinion said that the decision in Fraser was the most appropriate for determining whether Frederick’s punishment violated the First Amendment, relying on “two basic principles” of the Fraser decision: that public school students’ constitutional rights are not the same as adults or even as students outside of school, and that “the mode of analysis set forth in Tinker is not absolute.”
The majority also said that previous Supreme Court rulings, recent studies and the 1994 Safe and Drug-Free Schools and Communities Act, 20 U.S.C. section 7114(d)(6) (2000 ed., Supp. IV), all highlight the “important – indeed, compelling interest” of deterring drug use by schoolchildren. New Jersey v. T.L.O., 469 U.S. 325 (1985), Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), and Board of Ed. of Independent School Dist No. 92 of Pottawattamie Cty. v. Earls, 536 U.S. 822 (2002) all held that students’ Fourth Amendment rights against unreasonable searches and seizures were subject to “schools’ custodial and tutelary responsibility for children.” The opinion also cited a National Institute on Drug Abuse survey which found that “[a]bout half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and one-fifth of 8th graders.”
“It was reasonable for [Morse] to conclude that the banner promoted illegal drug use –- in violation of established school policy –- and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use,” concluded the majority. “The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.”
Justice Kennedy joined a concurrence written by Justice Alito which sought to emphasize the limited nature of the ruling: that it meant to restrict only “speech that a reasonable observer would interpret as advocating illegal drug use” and that 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.’”
The concurrence warned against an argument put forward by the petitioners as well as the United States government that the First Amendment allows censorship of any student speech that conflicts with a public school’s “educational mission.”
“This argument can easily be manipulated in dangerous ways, and I would reject it before such dangerous abuse occurs,” Alito wrote.
Justice Thomas concurred with the majority, but argued the standard set forth in Tinker “is without basis in the constitution.” Thomas wrote that historically, teachers’ authority and discipline has been absolute and the legal theory of in loco parentis supported teachers’ rights “to enforce rules, and to maintain order.” Thomas argued that the standard established in Tinker deviated from this long-held precedent, and “given the opportunity,” he would “dispense with Tinker altogether.”
Justice Breyer concurred in part and dissented in part, saying that the court “need not and should not decide this difficult First Amendment issue on the merits.”
Instead, Breyer said the court should hold that Morse had qualified immunity – that she could not know at the time she pulled down the banner that she was violating Frederick’s civil rights. For that reason, the court should rule that the student’s claim for monetary damages is barred and “say no more.”
Breyer said that the majority’s holding that schools may “restrict student expression that they reasonably regard as promoting illegal drug use” was a matter quite different from the issue raised by the specific facts in the case, and that it raised concerns because it was “based…on…viewpoint restrictions.”
Justice Stevens’ dissent, joined by Justices Souter and Ginsburg, argued that the phrase on Frederick’s banner, contrary to the majority’s interpretation, did not represent a violation of “a permissible rule” or “expressly advocate conduct that is illegal and harmful to students.”
Stevens said that the court opinion in Tinker as well as Justice Harlan’s dissent in that case highlighted two fundamental First Amendment principles: first that censorship of speech based on the speaker’s viewpoint is “subject to the most rigorous burden of justification,” and second that “punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid.”
Stevens said the majority opinion in Morse v. Frederick “trivializes” these two “cardinal principles” of the Tinker decision, by inviting administrators like Morse to discipline students with whose pro-drug speech they disagree, and by refusing to demand that the school “show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.”
“Instead,” wrote Stevens, “the court punts,” by both deferring to the principal’s “reasonable” judgment that the banner constituted drug advocacy and by using its own reasoning to say that the message was express advocacy.
“To the extent the Court independently finds that ‘BONG HiTS 4 JESUS’ objectively amounts to the advocacy of illegal drug use…that conclusion practically refutes itself,” wrote Stevens.
Stevens’ dissent said, “… the Court does serious violence to the First Amendment in upholding – indeed lauding – a school’s decision to punish Frederick for a view with which it disagreed…. [Its] ham-handed, categorical approach is deaf to the constitutional imperative to promote unfettered debate, even among high-school students….”
Steven R. Shapiro, national legal director for the American Civil Liberties Union, which represented Frederick, was critical of the court’s ruling.
“It is difficult to know what its impact will be in other cases involving unpopular speech,” said Shapiro in a June 25 story by the Associated Press (AP). According to the Knight-Ridder Washington Bureau, Shapiro said the ruling “creates a drug exception to the First Amendment.”
Mark Goodman, executive director of the Student Press Law Center, said in an article posted June 25 on that organization’s Web site that although he is disappointed in the decision, he sees it as a narrow ruling that only allows school officials to limit student speech that promotes illegal drug use and not speech relating to discussion of political and social issues.
Kenneth Starr, a former independent counsel known for his role investigating the Clinton-Lewinsky scandal, represented Morse. The June 25 AP story said Starr called the court’s decision a narrow ruling that “should not be read more broadly.”
The Student Press Law Center reported July 10 that the Journalism Education Association, an organization of journalism teachers, released a statement criticizing the decision in Morse, recommending that schools use caution in applying it to avoid excessive censorship. The group called the decision “potentially damaging to robust discussion of a whole range of important issues.”
According to the AP, three museums, Washington D.C.’s Newseum, which is set to open later this year, the Juneau-Douglas City Museum, and the Alaska State Museum have expressed interest in acquiring Frederick’s butcher paper and duct tape banner. Officials from the Newseum have said that they would like to display the banner next to the black armband a then-13-year-old Mary Beth Tinker was suspended for wearing to school in 1965 in protest of the Vietnam War.
– Patrick File, Silha Fellow and Bulletin Editor