Morse v. Frederick

Morse v. Frederick
Supreme Court of the United States
Argued March 19, 2007 Decided June 25, 2007
Full case name	Deborah Morse and the Juneau School Board, et al., Petitioners v. Joseph Frederick
Docket no.	06-278
Case history
Prior	Summary judgment for defendant granted, No. J 02-008 CV(JWS), 2003 WL 25274689 (D. Alaska May 27, 2003); rev'd, 439 F.3d 1114 (9th Cir. 2006); cert. granted, 127 S. Ct. 722 (2006)
Holding
Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.
Court membership
Chief Justice John Roberts Associate Justices John P. Stevens · Antonin Scalia Anthony Kennedy · David Souter Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito
Case opinions
Majority	Roberts, joined by Scalia, Kennedy, Thomas, Alito
Concurrence	Thomas
Concurrence	Alito, joined by Kennedy
Concur/dissent	Breyer
Dissent	Stevens, joined by Souter, Ginsburg
Laws applied
U.S. Const. amends. I, XIV; 42 U.S.C. § 1983

Morse v. Frederick, 127 S. Ct. 2618 (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.

Background and court history of the case

File:Bh4j.jpg

The banner in question

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 later increased the suspension to ten days. 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.

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. "Frederick sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney's fees."

The United States District Court for the District of Alaska ruled in favor of the School Board and Deborah Morse. The District Court ruled that 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. 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."

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.

Oral arguments before the Supreme Court of the United States

Oral arguments were heard on the morning of 19 March 2007.

Petitioning attorney Kenneth Starr

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'. 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."

Opinion of the Supreme Court

Chief Justice Roberts, who authored the majority decision

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." The Court also noted "peer pressure is perhaps 'the single most important factor leading school children to take drugs.'" The Court's interpretation of Frederick's banner deemed the banner as a type of peer-pressure. 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."

Roberts ruled a narrow decision in this case, which resolves only the case at hand; such decisions not require a discussion of the constitutional questions that precedent cases raise.

Justice Clarence Thomas and Justice Antonin Scalia are the known fundamentalists of the contemporary Supreme Court. In the Morse v. Frederick decision, both justices joined the majority and Thomas authored a concurrence as well. The majority decision limited the expression of free speech in a public school environment. It gave the school system special power to hinder the public expression of students in effort to safeguard students from paraphernalia that can be regarded as advocating drug use.

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. This is because Clarence Thomas has an originalist judicial philosophy and therefore believes that this case should be decided based on what the Constitution originally said. Justice Clarence Thomas writes, "In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." He praised Hugo Black's dissenting opinion on Tinker and called it "prophetic". Thomas cited the doctrine of in loco parentis, meaning in the place of the parent, in his opinion. He traced the history of public education in America back to its colonial roots. He opined that because parents entrusted the care of their children to teachers, teachers have a right to act in the place of parents during school hours. Therefore, teachers should be able to discipline students if necessary. Thomas lambasted Tinker for “usurping [the local school district as a] traditional authority for the judiciary." Thomas believed that Frederick was neither speaking gibberish nor openly advocating drug-use, but granting such an impertinence constitutional protection "would...be to 'surrender control of the American public school system to public school students.'" <Thomas dissenting, Supreme Court opinion>

Despite Thomas' originalist philosophy, he interestingly seems to believe that this case should have been decided through other means, such as through school boards or elected offices, "“If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures… Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process” (Morse v. Frederick).

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."

Alito agrees that Morse did not violate Frederick's First Amendment Rights and emphasized in his concurrence that the holding only applies to students who advocate illegal drug use. He opposes the "educational mission" and in loco parentis analysis in favor of a "special characteristic" of schools which he identifies to be ensuring the physical safety of the students. Alito concludes that an exception must be made to the First Amendment free speech guarantee to protect the students; since according to Alito, advocating illegal drugs possibly leads to violence. But Alito insists that this small reduction of what is protected by the First Amendment is "at the far reaches of what the First Amendment permits."

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.

Dissent

Justice Stevens wrote the dissenting opinion.

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."

Groups involved

Paul Clement, Solicitor General of the United States, filed a brief in support of the school board and principal.

The American Civil Liberties Union directly participated in this case on the side of Joseph Frederick. The Center for Individual Rights, National Coalition Against Censorship, and other groups that advocate First Amendment protection filed amici curiae in support of Frederick. Students for Sensible Drug Policy also noted that banning drug-related speech would undermine their ability to have chapters in public schools. The American Center for Law and Justice, and Rutherford Institute, and several other Christian Right groups also filed briefs on the side of Frederick, reasoning that if schools could ban "offensive" speech they would also be able to prohibit religious speech with which administrators disagree. On this point, the Christian Right groups prevailed, as the Supreme Court explicitly declined to hold that school boards could discipline "offensive" speech, noting that "much political and religious speech might be perceived as offensive to some" and the concern is "not that Frederick's speech was offensive, but that it was reasonably viewed as promoting illegal drug use."

The National School Boards Association supports Morse and the Juneau school district, arguing that schools should be able to regulate controversial speech. Solicitor General Paul Clement has filed an amicus brief in support of the school district's decision to prohibit controversial speech.

On March 19, 2007, Students for Sensible Drug Policy organized a widely-publicized free speech rally at the Supreme Court during oral arguments. The Drug Policy Alliance and the National Youth Rights Association assisted with the rally, which brought dozens of students from across the country to the court steps.

See also

• List of United States Supreme Court cases, volume 551

External links

• Official Supreme Court slip opinion
• Text of the opinion, LII, Cornell University
• Bong Hits 4 Jesus Toke Two Washington Post Opinion, Emil Steiner
• Supreme Court Oral Argument Transcript
• Video of March 19 free speech demonstration at the U.S. Supreme Court
• Analysis of the Supreme Court ruling by Andy Carvin
• Opinion of the Ninth Circuit Court of Appeals
• Yale Law Journal commentary
• MSNBC article on the incident
• Washington wire article
• Law.com case overview
• Law.com cert. candidate
• Bong Hits 4 Jesus Toke Three Washington Post Opinion, Emil Steiner
• Student Press Law Center on the Appeals Court decision
• San Francisco Gate on the appeal
• List of briefs filed in the case, including several amicus briefs
• Analysis of the semantics of Bong hits 4 Jesus
• Video of Bong Hits 4 Jesus song about the case