Quick look: Morse v. Frederick

Friday, June 29, 2007

Case name: Morse
et al. v. Frederick

Background: In 2002, high school student Joseph Frederick held a homemade
banner with the message “Bong Hits 4 Jesus” in front of TV cameras as the
Olympic torch passed through Juneau, Alaska, on its way to the Salt Lake City
Winter Olympics. Frederick, who said he had seen the phrase on a snowboard and
did not think it had a substantial meaning, held the banner across the street
from his high school. Although he was not on school grounds, Principal Deborah
Morse asked Frederick to take down the banner, believing it advocated illegal
drug use. When Frederick refused, Morse suspended him, and Frederick sued on
First Amendment grounds. The 9th Circuit found that the school punished
Frederick without demonstrating that his banner posed a substantial disruption.
That court further said Morse should have understood that her actions were
unconstitutional and that she was therefore not entitled to qualified immunity
from liability for damages. Morse appealed to the Supreme Court, arguing that
Frederick’s message violated the school district’s drug policy.

Ruling: The Supreme Court ruled 5-4 that schools can prohibit student
expression if it can be interpreted as advocating drug use. Even though the
message appeared nonsensical, Morse acted appropriately to interpret the banner
as a pro-drug message. Also, because Frederick was at a school event, it was
irrelevant whether or not the banner was held on school premises. The Court
ruled that Morse did not violate Frederick’s freedom of speech and was therefore
not liable for her actions.

Verbatim: “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 … . Student speech
celebrating illegal drug use at a school event, in the presence of school
administrators and teachers, poses a particular challenge for school officials
working to protect those entrusted to their care. The ‘special characteristics
of the school environment,’ Tinker, 393 U. S., at 506, and the governmental
interest in stopping student drug abuse allow schools to restrict student
expression that they reasonably regard as promoting such abuse … . The concern
here is not that Frederick’s speech was offensive, but that it was reasonably
viewed as promoting illegal drug use.”

Lineup: Chief Justice John G. Roberts wrote the opinion for the
majority, joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas
and Samuel Alito. Alito, joined by Kennedy, filed a concurring opinion in which
he stated that the Court does not support restriction on speech about political
or social issues. Thomas also filed a concurrence saying he would have
overturned Tinker
v. Des Moines Independent Community School District,
saying it is
without constitutional basis. Justice Stephen Breyer concurred in part and
dissented in part, stating that he would only decide that Morse should not be
liable for her actions and not address the First Amendment issue. Justice John
Paul Stevens filed the dissenting opinion, joined by Justices David Souter and
Ruth Bader Ginsburg. In his dissent, Stevens emphasized that “serious violence
to the First Amendment” is done when the Court upholds a student’s punishment
for speech with which it disagrees.

First Amendment impact: Difficult to determine. The American Civil
Liberties Union  said it hurts student free-speech rights by creating a
“drug exception” to the First Amendment. However, Roberts said Tinker
involved “concerns at the heart of the First Amendment” and that this ruling
does not interfere with Tinker. He also said this decision should not be
interpreted as allowing censorship of “offensive” student speech, but only as
recognizing a school district’s right to enforce drug policy.