Morse v. Frederick
Morse v. Frederick, 551 U.S. 393, is a United States Supreme Court case where the Court held, 5–4, that the First Amendment does not prevent educators from prohibiting or punishing student speech that is reasonably viewed as promoting illegal drug use at a school-sanctioned event.
In 2002, Juneau-Douglas High School principal Deborah Morse suspended student Joseph Frederick after he displayed a banner reading "BONG 4 JESUS" across the street from the school during the 2002 Winter Olympics torch relay. Frederick sued, claiming his constitutional rights to free speech were violated. His suit was dismissed by the federal district court, but on appeal, the Ninth Circuit reversed the ruling, concluding that Frederick's speech rights were violated. The case then went on to the Supreme Court.
Chief Justice John Roberts, writing for the majority, concluded that school officials did not violate the First Amendment for three reasons. First, under the existing school speech precedents Tinker v. Des Moines Independent Community School District, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, students do have free speech rights in school, but those rights are subject to limitations in the school environment that would not apply to the speech rights of adults outside school. Second, the "school speech" doctrine applied because Frederick's speech occurred at a school-supervised event. Finally, the Court held that the speech could be restricted in a school environment, even though it was not disruptive under the Tinker standard, because "the government interest in stopping student drug abuse...allow schools to restrict student expression that they reasonably regard as promoting illegal drug use."
Background and procedural history
On January 24, 2002, students and staff at Juneau-Douglas High School in Alaska were permitted to leave classes to watch the Olympic Torch pass by as part of the 2002 Winter Olympics torch relay. Joseph Frederick, who was late for school that day, joined some friends on the sidewalk across from the high school, off school grounds. Frederick and his friends waited for the television cameras to reach their location so they could unfurl a banner reading "BONG 4 JESUS". Frederick was quoted as saying he had 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 Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to ten days after Frederick quoted Thomas Jefferson. Frederick administratively appealed his suspension to the superintendent who denied his claim but limited it to the time Frederick had already spent out of school prior to his appeal. Frederick then appealed to the Juneau School Board, which upheld the suspension on March 19, 2002.
District court
On April 25, 2002, Frederick filed a civil rights lawsuit against Morse and the school board, claiming they violated his federal and state constitutional rights to free speech. He sought declaratory relief, injunctive relief, and monetary awards.The United States District Court for the District of Alaska dismissed Frederick's case on summary judgment. The district court reasoned that Bethel School District No. 403 v. Fraser governed Frederick's school speech. Under this precedent, the Court ruled that, given the stipulated facts, Morse and the school board had not infringed Frederick's First Amendment rights, because Morse had reasonably interpreted the banner as contravening the school's policies on drug abuse prevention. Frederick appealed this ruling to the Ninth Circuit Court of Appeals.
Ninth Circuit
The Ninth Circuit reversed the decision of the District Court. The unanimous panel decision was written by Judge Andrew Kleinfeld. First, the Court decided that the incident should be interpreted under school speech doctrines, even though Frederick was standing across the street, and not on school grounds.Thus, for Judge Kleinfeld, "the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly 'No'." To reach this determination, the Court inquired whether Frederick's constitutional rights were violated. The circuit court, in opposition to the district court, held that Tinker v. Des Moines Independent Community School District was the more relevant precedent
Certiorari and oral arguments
The school board petitioned the U.S. Supreme Court to review the Ninth Circuit's decision, with Juneau school district superintendent Peggy Cowan stating, "My concern is that could compromise our ability to send a consistent message against the use of illegal drugs." On December 1, 2006, the Court accepted the case.Oral arguments were heard on the morning of March 19, 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 allowing speech by school students but "that the speech not be disruptive". He defined disruptiveness in general terms as behavior inimical to the educational mission of the school, and in specific terms as a violation of the school's announced policy to enforce and support laws with respect to the control of marijuana. Starr 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 David Souter remarked that Bong Hits 4 JESUS "sounds like just a kid's provocative statement to me." Starr responded by saying "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." He cited the cases of Board of Education v. Earls and Hazelwood v. Kuhlmeier in his favor.
Representing Frederick, Douglas K. Mertz 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 emphasized that the torch relay was not school-sponsored; that Frederick had not stepped on school property at all before presenting the banner; that "BONG HiTS 4 JESUS" was intended to be—and was regarded as—a purely humorous message; and that the unfurling of the banner did not cause any disruption. Based on these facts, he concluded, his case "does not present the issue of school authority over student expressions on campus or in a school-sponsored activity."
Starr rebutted. He cited Vernonia School District 47J v. Acton and Board of Education v. 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."
Opinion of the Court
Chief Justice Roberts, writing for a majority of five justices, concluded that the school officials did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. Roberts determined that Frederick's banner qualified as "school speech" that can be restricted by administrators because it occurred "at a school event". Roberts also determined that the speech was "reasonably viewed as promoting illegal drug use" and acknowledged a school's "important—indeed, perhaps compelling interest" in deterring drug use by students.First, Roberts determined that the Court should analyze Frederick's speech under the comparatively strict doctrine of "school speech"—rejecting "at the outset" Frederick's contention that the case should instead be considered under ordinary free-speech jurisprudence. While conceding that past precedent reflects "some uncertainty at the outer boundaries as to when courts should apply school-speech precedents", Roberts added: "but not on these facts". "Under these circumstances, we agree with the superintendent that Frederick cannot 'stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school'."
Next, Roberts determined that the principal's conclusion that Frederick's banner "advocated the use of illegal drugs" was reasonable. Acknowledging that the banner's message was "cryptic", nevertheless it was undeniably a "reference to illegal drugs". In reaching this conclusion, Roberts contrasted "the paucity of alternative meanings the banner might bear" against the fact that the two immediately available interpretations of the words support this conclusion, "bong hits" being equivalent to smoking marijuana which in turn is illegal activity. Roberts also detected no difference between "celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion."
Roberts rejected the two alternative accounts for Frederick's speech provided in the dissent: first, the dissent noted that Frederick "just wanted to get on television", which it characterized as a "credible and uncontradicted explanation for the message". Roberts rejoined: "But that is a description of Frederick's motive for displaying the banner; it is not an interpretation of what the banner says." Second, the dissent emphasized the importance of political speech and the need to foster "national debate about a serious issue". Roberts rejoined that "not even Frederick argues that the banner conveys any sort of political or religious message"; "this is plainly not a case about political debate over the criminalization of drug use or possession."
Finally, Roberts inquired whether a principal may restrict such speech. He concluded that she can per Tinker v. Des Moines Independent Community School Dist. which governs student speech that could disrupt the educational environment, and Bethel School Dist. No. 403 v. Fraser which governs potentially controversial speech on school grounds. Roberts also concluded that both of those precedents allow flexibility for school administrators on which types of speech to prohibit. Finally, Roberts cited Hazelwood School Dist. v. Kuhlmeier which allows school administrators to "exercise editorial control over the style and content of student speech in school-sponsored expressive activities" for pedagogical reasons.
Roberts then considered a school's interest in prohibiting speech that promotes illegal drug use, citing statistics illustrating the problems of youth drug abuse and noting that part of a school's educational mission is "to educate students about the dangers of illegal drugs and to discourage their use." Roberts determined that Frederick's banner could create peer pressure and that the principal's actions were motivated by a "serious and palpable" danger of drug abuse. Morse's actions sent "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 "does not require schools to tolerate at school events student expression that contributes to those dangers."