Morse v. Frederick (2007) timeline:
Jan. 24, 2002: Joseph Frederick, a senior at Juneau-Douglas High School, unfurls a banner that says “Bong Hits 4 Jesus” during the Olympic torch relay through town. He stands across the street from the school, which released students early to watch the relay. Principal Deborah Morse tells Frederick to put away the banner. When he refuses, she confiscates it. Frederick receives a 10-day suspension for violating a school policy that bans advocating illegal drug use. He appeals his suspension to the superintendent, saying the banner was meant to be “meaningless and funny” to get on television. The superintendent upholds the punishment, saying the banner caused a disruption at school and interfered with its educational mission.
March 19, 2002: The Juneau Board of Education upholds Frederick’s suspension.
April 25, 2002: Frederick sues Morse and the Juneau School District in U.S. District Court, District of Alaska, saying his right to free speech was violated. He argues that he was off school property and not subject to school policies.
May 27, 2003: The U.S. District Court rules in favor of the school district, granting its motion for a summary judgment (meaning it agrees that no trial is necessary after assessing physical evidence, documents and depositions in the pretrial discovery phase).
July 8, 2004: Frederick files an appeal with the 9th U.S. Circuit Court of Appeals.
March 10, 2006: The 9th Circuit appeals court reverses the lower court, ruling that the school district violated Frederick’s rights when it censored “non-disruptive, off-campus speech.” The appeals court uses Tinker (students have the right to free speech as long as it does not materially or substantially disrupt the school) as the basis for its ruling.
The appeals court also says Morse is not entitled to qualified immunity in the case and can be sued for damages. The U.S. Supreme Court’s doctrine of qualified immunity generally holds that government officials may not be sued for damages unless they have violated “clearly established rights of which a reasonable person would have known.”
Morse appeals to the U.S. Supreme Court, asking the justices to determine (1) whether schools can restrict speech advocating illegal drug use at school-sponsored events and (2) whether educators have immunity from being sued for damages in such cases. Frederick argues that he should not be punished because he was off campus, the event was not sponsored by the school, and school was not disrupted.
Dec. 1, 2006: The U.S. Supreme Court agrees to hear Morse v. Frederick, which has drawn national attention. “Friend of the court” briefs are filed for both sides by a diverse collection of organizations, including the National Coalition Against Censorship, the Student Press Law Center, Drug Policy Alliance, D.A.R.E. America, and the National School Boards Association. Kenneth Starr, a former independent counsel who led an investigation of President Bill Clinton, is representing Morse and the school district pro bono.
June 25, 2007: The U.S. Supreme Court decides, 5-4, that Frederick’s rights were not violated, saying schools have the right to restrict student speech that advocates illegal drug use. The issue of school officials’ liability for damages is not addressed because no constitutional violation is found.
Majority opinion, written by Chief Justice John G. Roberts Jr., concurring are Justices Clarence Thomas, Anthony Kennedy, Antonin Scalia and Samuel Alito.
First, this case does involve student speech. The banner was unfurled at a school-sponsored event during school hours. Students were released to watch the torch relay as an “approved social event or class trip” under the supervision of faculty and staff. School board policy says that student conduct rules apply on class trips.
Schools may act to protect students from speech can be reasonably interpreted as promoting illegal drug use. The principal’s view that “Bong Hits 4 Jesus” could be interpreted as encouraging illegal drug use is reasonable. Tinker protects students’ right to political speech that does not substantially disrupt the school. However, as Frederick himself says, the banner was not political speech.
The court previously has held that the rights of students in school are not the same as the rights of adults in other settings and that students’ free speech rights may be limited when applied “in light of the special characteristics of the school environment.” Previous rulings also confirmed that schools may regulate some speech in school for valid educational purposes.
In the context of the Fourth Amendment, court rulings suggest that while students maintain their constitutional rights in school, “the nature of those rights is what is appropriate for children in school.”
Schools have an “important” and “compelling” interest in educating children about illegal drugs. Several national studies and reports point to the growing problem of drug abuse among youth. Congress has declared that schools must educate students about the dangers of illegal drugs and has provided billions of dollars toward that goal.
Concurring, Justices Kennedy and Alito limit the scope of the majority’s opinion to restricting student speech that advocates the illegal drug use. They say there is no support for limiting speech that can be interpreted as political or social commentary, such as legalizing marijuana for medical use.
Concurring, Justice Thomas says Tinker should be overturned. He asserts that the First Amendment was never intended to protect student speech.
Some key cases cited:
Limiting student speech
Bethel School District v. Fraser (1986): The U.S. Supreme Court rules that schools are allowed to censor vulgar and lewd speech because it is inconsistent with the basic values of public school education. The court makes a distinction between protected political speech in Tinker and vulgar and lewd speech. The court also says that simply because adults have the right to use an offensive form of expression to make a political point, that does not mean students have the same right.
Hazelwood School District v. Kuhlmeier (1988): The U.S. Supreme Court upholds the right of school authorities to restrict student speech in school-sponsored activities for valid educational reasons.
Students’ rights in school limited
New Jersey v. TLO (1985): In a case involving the search of a student caught smoking at school, the U.S. Supreme Court abandons its requirement that a search can be conducted only when there is “probable cause” that a crime has occurred and that a search warrant must be obtained. The justices say the legality of school searches depends only reasonable grounds that the student has violated the law or school rules. Because school officials need to maintain a learning environment, they should not be held to the same requirements as public authorities.
Vernonia School District v. Acton (1995): In a case involving a random drug-testing policy for high school athletes, the U.S. Supreme Court decides that the search and seizure clause of the Fourth Amendment is not violated. It says students, under the supervision of the school, are subject to greater control than adults in other settings.
”Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere.”
Dissenting opinion, written by Justice John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg:
Rather than a pro-drug message, “Bong Hits 4 Jesus” was a “nonsense message” designed to draw the attention of TV crews at the event. Frederick should not be punished simply because the message contained a vague reference to drugs.
Morse said she removed the banner because she disagreed with what she deemed a pro-drug message. But speech should not be restricted because a listener or society disagrees with the message. Banning a particular expression has to be justified by more than a desire “to avoid … the unpleasantness” that comes with an unpopular viewpoint.
Even if the school’s strong interest in protecting students supports its restriction on speech advocating illegal drug use, it does not support prohibiting “an obscure message” that a third party thinks is advocating illegal drug use.
Punishment for speech advocating illegal conduct is constitutional only when that advocacy is likely to incite “imminent lawless action.” Promoting illegal drug use “hardly justifies censorship.”
Some key cases cited:
Tinker v. Des Moines Independent Community School District (1969): The U.S. Supreme Court upholds the students’ right to free speech in schools as long as it does not materially or substantially cause a disruption in school or infringe on the rights of others.
Texas v. Johnson (1989): The U.S. Supreme Court says flag burning is protected speech. The court says the expression of an idea cannot be prohibited “simply because society finds the idea itself offensive or disagreeable.”
Brandenburg v. Ohio (1969): The U.S. Supreme court strikes down Ohio’s criminal syndicalism law that prohibits speech advocating various illegal activities. The justices say that such speech is prohibited if it is directed at inciting “imminent lawless action” and is likely to cause such action.
Rosenberger v. Rector and Visitors of University of Virginia (1995): The U.S. Supreme Court rules that the University of Virginia cannot deny funds for a student group’s Christian magazine when it makes funds available to secular student publications. The justices say that this amounts to viewpoint discrimination. The court says that if the school promotes speech, it must promote all forms of speech equally.
Thomas v. Collins (1945): The U.S. Supreme Court strikes down a Texas law requiring labor organizers to obtain a permit to solicit members at a rally. The court finds that the distinction between advocacy and incitement cannot depend on how someone at the rally might have understood the organizer’s speech.
Cox v. Louisiana (1965): The U.S. Supreme Court overturns a civil rights activist’s conviction for disturbing the peace when he urged protesters to sit at segregated lunch counters. It finds that the conviction for leading a peaceable demonstration that contains speech that may potentially incite violence is unconstitutional.
Concurring and dissenting opinion: Justice Stephen Breyer contends that the constitutional issue of students’ right to free speech did not need to be decided. The court needed to decide only whether the principal is entitled to qualified immunity from personal liability. He asserts that because the constitutionality of Frederick’s speech was unclear at the time, Morse is entitled to qualified immunity.