Morse v. Frederick 2007

Petitioners: Deborah Morse et al.

Respondents: Joseph Frederick

Foundations of Our Legal System: Rights and Privileges; First Amendment Rights; Freedom of Speech

SUMMARY: A high school senior brought a banner that said “BONG HiTS 4 JESUS” to a school-sanctioned rally, which the principal confiscated because she believed it encouraged the use of illegal substances. The student sued for the violation of his First Amendment right to freedom of speech, but the Court held that the rights of students are construed in light of the school’s policies, and therefore, no breach of his right occurred.

FACTS:

Respondent Joseph Frederick, a high school senior of Juneau-Douglas High School (JDHS), along with other students, brought a 14-foot banner that said “BONG HiTS 4 JESUS” to a school-sanctioned rally supporting the Olympic Torch Relay that was passing through their town. Petitioner, JDHS Principal Deborah Morse, asked them to take it down, but Frederick was the only one who did not comply.

Morse had Frederick suspended for 10 days, on the grounds that the banner encouraged illegal drug use, which was in violation of school policy.

The Juneau School District Superintendent upheld the suspension (but lowered it to 8 days), and so did the Juneau School District Board of Education.

Frederick then filed suit, alleging that Morse and the school board violated his First Amendment rights. The District Court ruled in favor of Morse et al, so Frederick appealed. The Ninth Circuit reversed the decision, holding that there was indeed a violation of his rights, because the school punished him without demonstrating that his speech gave rise to a “risk of substantial disruption.”

ISSUE/S:

WoN Frederick had a First Amendment right to wield his bannero NO, his constitutionally-protected right to free speech must be viewed in the

context of the school’s policies, which expressly prohibit the encouragement of illegal drug use.

o This occurred during normal school hours, in an event that was sanctioned by the

principal as “an approved social event or class trip,” which means Frederick was still bound by the school’s rules and regulations.

o 2 possible interpretations of the phrase: 1) take bong hits, smoke marijuana, or

use an illegal drug; 2) bong hits are a good thing, or we take bong hits There is no meaningful distinction between these that would help

Frederick’s case. It could also be construed as gibberish, but this would ignore the blatant drug reference.

Frederick cites his motive (to get on television), but this doesn’t matter in interpreting the banner’s content. He also admits that there is not political or religious message, and thus, he cannot invoke that as a defense.

o Relevant jurisprudence regarding students’ First Amendment rights:

Tinker: group of students wore armbands to protest the Vietnamese War, which the school banned (political motive); Court held that that was a violation of the First Amendment because there was no material and substantial disruption of work and discipline of the school

Fraser: student made a lewd joke during a school speech, so school suspended him; Court held that there was no violation of the First Amendment because they had the authority to impose sanctions and determine what manner of speech in the classroom is appropriate

This decision shows that the students’ constitutional rights in public school are not automatically coextensive with the rights of adults in other settings. Had it been a speech outside of school, there would have been a violation of the First Amendment.

First Amendment rights are circumscribed in light of the special characteristics of the school environment. Tinker is therefore not absolute.

Kuhlmeier: staff of a school paper sued their school when it didn’t let them publish two articles

This shows that schools may regulate content and speech that has it’s imprimatur.

o There is a compelling state interest in deterring drug use by schoolchildren,

which would make the principal’s action warranted. Congress has declared that it is part of the school’s job to educate students about the danges or illegal drug use.

WoN that right was so clearly established that the principal may be held liable for damages

o There was no longer any need for the Court to rule on this issue, because there

was no violation of Frederick’s First Amendment right.

Concurring:

J. Thomas: The Tinker decision is without constitutional basis.o Tinker undermines the traditional authority of teachers to maintain order in public

schools.o Under the principle of locus parentis, there were no limits on the types of rules

that schools could set for their students, and teachers had tremendous discretion to impose punishments for violations. While the educational system has changed, there is no constitutional imperative to require all forms of student speech in public schools.

J. Alito: Public schools are organs of the state, and when they exercise their authority to regulate speech, they do so as agents of the state. It is not a delegation of parents’ authority, but of the state’s. Altering free speech rules lies in the special characteristics

of the school setting, and has to do with the need to ensure the students’ physical safety, which involves regulating speech.

Concurring and Dissenting:

J. Breyer: The Court should not decide on the First Amendment issue in this case, but simply hold that qualified immunity bars the student’s claim for monetary damages.

o Qualified immunity is accorded to government employees, wherein courts are

required to enter judgment in their favor unless the employee’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Dissenting:

J. Stevens: The school’s interest in protecting students from exposure to speech “reasonably regarded as promoting illegal drug use” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a TV audience simply because it contained an oblique reference to drugs.

o Schools are entitled to restrict speech that advocates drug use, but it is another

thing to entirely prohibit an obscure message with a drug theme that may or may not be tantamount to express advocacy. (“This is a nonsense message, not advocacy.”)