Morse v. Frederick, 551 U.S. ___ (2007), was a First Amendment student free speech case in which the Supreme Court of the United States held that a school principal may, consistent with the First Amendment, restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

In 2002, 18-year-old Joseph Frederick was suspended from the high school where he was a senior after he displayed a banner reading "BONG HiTS 4 JESUS" across the street from the school in Juneau, Alaska, during the Winter Olympics torch relay.

[edit]Background and court history of the case

On January 24, 2002, students and staff were permitted to leave classes at Juneau-Douglas High School to attend a school-sanctioned and school-supervised event, to watch the Olympic torch pass by. Frederick, who was late for school that day, joined some friends on the sidewalk across from the high school, off of school grounds. Frederick and his friends waited for the television cameras so they could unfurl a banner reading "BONG HiTS 4 JESUS". Frederick was quoted as saying he'd first seen the phrase on a snowboard sticker. When they displayed the banner, then-principal Deborah Morse ran across the street and seized it.

Morse initially suspended Joseph Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to ten days after Frederick refused to give the names of his fellow participants and quoted Thomas Jefferson on free speech. Frederick administratively appealed his suspension to the Superintendent, who denied his appeal but limited it to the time Frederick had already spent out of school prior to his appeal to the Superintendent (eight days). Frederick then appealed to the Juneau School Board, which upheld the suspension on March 19, 2002.

[edit]District court

On April 25, 2002, Frederick filed a civil rights lawsuit against Morse and the school board in the United States District Court for the District of Alaska claiming they violated his federal and state constitutional rights to free speech.

The United States District Court for the District of Alaska ruled in favor of the School Board and Deborah Morse. On appeal, the 9th US Circuit Court of Appeals reversed the federal district court's decision. Regarding the circuit court's decision, Juneau school district superintendent Peggy Cowan expressed, "My concern is that [the court's ruling] could compromise our ability to send a consistent message against the use of illegal drugs."

[edit] Circuit court

The Ninth Circuit reversed the decision of the District Court. Despite deciding that the incident took place during a school event, the court held that Frederick's student speech rights were violated. The unanimous panel decision was written by Judge Andrew Kleinfeld. Judge Kleinfeld acknowledged that the courts give high school students less leeway than adults when it comes to certain offensive speech - such as that which is sexually suggestive. Even if the contentious statement displayed by Joseph Frederick could be construed as a positive message about marijuana use, he reasoned in judgment, ". . . in the absence of concern about disruption of educational activities, (could a school) punish or censor a student's speech because it promotes a social message contrary to one favored by the school?" In his view expressed for the Court, he wrote, "The answer under controlling, long-existing precedent is plainly, 'No' ... 'Bong Hits 4 Jesus' may be funny, stupid, or insulting, depending on one's point of view (but it is not) plainly offensive (in the manner of sexual innuendo)."

The school board petitioned the Supreme Court to review the Ninth Circuit's decision. On December 1, 2006, the Court accepted the case.

[edit] Oral arguments before the Supreme Court of the United States: 19 March 2007

Kenneth Starr first spoke on behalf of the petitioning school principal. He described the rule in Tinker v. Des Moines Independent Community School District as 'that there is a right to political speech subject to disruption — that the speech not be disruptive'. He defined the disruptiveness in general terms as behavior inimical to the educational mission of the school, and in specific terms as violation of the school's announced policy to enforce and support laws with respect to control of marijuana (and other laws in general). He also cited the cases of Bethel School District v. Fraser and Hazelwood v. Kuhlmeier.

Starr noted that in Tinker there was no written policy; it was an issue of "standardless discretion" being exercised. That case was said to be concerned with school disciplinary actions "casting a pall of orthodoxy to prevent the discussion of ideas."

Justice Souter remarked that 'Bong Hits 4 Jesus' "sounds like just a kid's provocative statement to me."

Starr defined as one of his themes that "the key is to allow the school official to interpret the message as long as that interpretation is reasonable."

Deputy Solicitor-General Edwin Kneedler spoke on behalf of the U.S. government in support of the petitioner. He said: 'The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the illegal use of drugs'.^[12] He cited the cases of Board of Education v. Earls and Hazelwood v. Kuhlmeier in his favor.

In oral argument, Douglas Mertz for the respondent opened, "This is a case about free speech. It is not about drugs." Chief Justice John Roberts responded: "It's a case about money. Your client wants money from the principal personally for her actions in this case." Mertz spoke for the respondent student's claim to have been unlawfully punished. He stated the two aspects of his defense as 'pure free speech', and 'the public place argument.' He argued that the respondent was 'not in school' prior to being confronted by the petitioner because of his truancy on the morning of the day in question.

Starr rebutted. He cited Vernonia School District 47J v. Acton and Earls as cases demonstrative of the Court's strong past stances on matter related to combating the 'scourge of drugs.' In closing and in summary he said:

"To promote drugs is utterly inconsistent with the educational mission of the school. The court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission. We know that there are constitutional limits (to lawful political expression). Those limits are captured in Tinker. A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the class room: we are light years away from that."

[edit] Opinion of the Supreme Court

Chief Justice Roberts, writing for the majority, concluded that the school officials did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. The opinion first concluded that Frederick's "Bong Hits" banner was displayed during a school event, making this a "school speech" case rather than a normal case of speech on a public street. The opinion then concluded that although the banner's message was "cryptic," it was undeniably a "reference to illegal drugs" and the principal reasonably concluded that it "advocated the use of illegal drugs." The opinion then cited Bethel School District v. Fraser, 478 U.S. 675 (1986), and Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) in support of the proposition that the First Amendment rights of students in school are not as broad as those of adults in other settings.

The opinion then moved on to discussing the case at hand, and emphasized the government's "important--indeed, perhaps compelling interest" in deterring drug use by students. To this point, the opinion cited statistics illustrating the problems of youth drug abuse. It further noted that part of a school's educational mission "to educate students about the dangers of illegal drugs and to discourage their use." Based on these concerns, the opinion concluded that the principal's actions were motivated by a "serious and palpable" danger of drug abuse quite different from the amorphous fears of anti-war sentiment at play in Tinker v. Des Moines, 393 U.S. 503 (1969).

In Tinker, the school principal had punished students for wearing black anti-war armbands based on his "undifferentiated fear or apprehension of disturbance" or "mere desire to avoid ... discomfort and unpleasantness." Here, however, the concern about student drug abuse "extends well beyond an abstract desire to avoid controversy." Principal Morse's failure to act against the banner "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." The First Amendment, concluded the opinion, "does not require schools to tolerate at school events student expression that contributes to those dangers."

[edit] Concurrences

Justice Clarence Thomas wrote a concurrence that argued that students in public schools do not have a right to free speech and that Tinker should be overturned. He praised Hugo Black's dissenting opinion on Tinker and called it "prophetic".

Justice Samuel Alito, joined by Justice Anthony Kennedy, wrote a concurrence indicating that he agreed with the majority opinion to the extent that:

(a) 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 (b) 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."

[edit] Concurrence in part and dissent in part

Justice Stephen Breyer concurred in the judgment in part and dissented in part, arguing that the Court should not have directly answered the First Amendment question in the case, but rather decided it based on qualified immunity. Qualified immunity is an affirmative defense that requires courts to enter judgment in favor of a government employee accused of violating individual rights unless the employee's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Because it was not clear whether the school principal's actions in taking down the banner violated the First Amendment, Breyer would have simply issued a narrow decision indicating that she was shielded by qualified immunity and gone no further.

[edit] Dissent

Justice John Paul Stevens, in a dissent joined by Justice Souter and Justice Ginsburg, argued that "the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school's decision to punish Frederick for expressing a view with which it disagreed. Stevens wrote:

the school's interest in protecting its students from exposure to speech "reasonably regarded as promoting illegal drug use," ante, at 1, cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.

Stevens excoriated the majority decision as one that "trivializes the two cardinal principles upon which Tinker rests," because it "upholds a punishment meted out on the basis of a listener's disagreement with her understanding (or, more likely, misunderstanding) of the speaker's viewpoint." Moreover, he noted, "Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship." "[C]arving out pro-drug speech for uniquely harsh treatment," wrote Stevens, "finds no support in our case law and is inimical to the values protected by the First Amendment."

Stevens also took issue with the majority's interpretation of the banner as being a serious incitement to drug use:

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.

Stevens argued that it would be "profoundly unwise to create special rules for speech about drug and alcohol use," pointing to the historical examples of both opposition to the Vietnam War and resistance to Prohibition in the 1920s. Pointing to the current debate over medical marijuana, Stevens concluded, "Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely."