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Confusion Reigns at "Bong Hits 4 Jesus" Supreme Court Argument

(March 21, 2007) - Justice David Souter seemed outnumbered at the Supreme Court argument on March 19 in Morse v. Frederick, the most important student free speech case to reach the Court in 20 years. Expressing doubt about the argument of Kenneth Starr (representing the Juneau, Alaska School Board) that administrators should be able to censor any student speech that contradicts an official policy of the school, Souter said this would undermine basic First Amendment principles.

But Justices Antonin Scalia, John Roberts, and Anthony Kennedy gave Starr's opponent, Douglas Mertz, an equally hard time when he tried to argue that outside a classroom or official school assembly, schools can't discriminate against student speech because of its viewpoint. Could a student wear a button saying "Rape is fun," Kennedy asked Mertz. Scalia joined in with other hypotheticals: what about "Smoke pot. It's fun," or "Extortion is profitable"?

The case involves a banner reading "Bong Hits 4 Jesus" which 18 year-old Joseph Frederick, standing on the sidewalk across the street from his high school in Juneau on January 24, 2002, unfurled as the Olympic Torch Relay passed by. The school principal, Deborah Morse, demanded that Frederick relinquish the banner. Frederick refused, citing his First Amendment right to free speech. Later that day, Morse punished him with a 10-day suspension.

In the lawsuit that followed, a federal district court agreed with Principal Morse that she had the authority to suppress Frederick's speech, even though he was not on school property at the time of the incident, because watching the Torch Relay was a "school-sponsored" event, and because Frederick's apparent message conflicted with the school's anti-drug policy.

A federal appeals court reversed, reasoning that under the Supreme Court's 1969 decision in Tinker v. Des Moines Independent School District, Frederick's expression was constitutionally protected. Tinker established that students are not just "closed-circuit recipients of only that which the state chooses to communicate," and that administrators must have a well-founded fear that a student's expression will disrupt school activities before they can punish or prohibit student speech.

The Supreme Court's agreement to review the case of Morse v. Frederick was probably driven by three concerns. First, Starr asserted in his petition for certiorari that Frederick's banner was unfurled at a "school-sponsored, teacher-supervised" event - a version of the facts that is clearly contested, since the event was not school-sponsored in any traditional sense; teachers had simply let the students out that morning to watch the Relay pass by. (Frederick was late and had not yet been to school that morning.)

Second, relying on earlier Court decisions allowing suspicionless drug testing of public school students, Starr emphasized that the banner contradicted the important goal of educating about the perils of drug use. He also cited the 1986 case of Bethel School District v. Fraser, where the Court ruled that school officials can punish a student for giving a lewd, innuendo-laden speech at a school assembly. That decision centered on the sexual, and to the justices offensive, character of the student's speech. A major question before the Court is whether Fraser should be extended to allow administrators to punish nonsexual student speech if, like "Bong Hits 4 Jesus," it can be read to contradict the message the school wants to send about drugs. (Frederick had said it was simply a humorous nonsense message that he used to get attention and test his First Amendment rights.)

Third, Starr played on the justices' sympathy for an administrator who was simply trying to implement the school district's anti-drug policy and was now stuck with an obligation to pay money damages to a rebellious teenager. The appeals court had ruled that the law was clear at the time of the incident, so that the principal wasn't entitled to "qualified immunity" from having to pay damages. The doctrine of qualified immunity relieves government officials of liability for damages if the law was unclear at the time and they could not, therefore, have been expected to know that what they were doing was unconstitutional. A brief from the National School Boards Associaton, urging the Court to take the case, pleaded the cause of beleaguered school officials who should not, they urged, be subjected to liability for trying to maintain discipline and teach youngsters abstinence from drugs.

None of the justices during the March 19 Supreme Court argument expressed support for the damages award against the principal. Nor was there much enthusiasm for Mertz's argument that since Joseph Frederick expressed himself off school property, and not at a "school-sponsored" event, he should enjoy the same First Amendment rights as any other citizen carrying a banner on a public sidewalk. On the other hand, several of the justices were interested when Mertz pointed out that the evidence in the case showed teachers were not exactly supervising students during the parade as Starr had claimed. And Justice Samuel Alito found "disturbing" the argument of Edwin Kneedler, representing the U.S. Justice Department, that schools don't have to tolerate any speech they consider inconsistent with their educational mission.

Morse v. Frederick attracted numerous amicus curiae briefs. Supporting Morse and school board were D.A.R.E. America and other anti-drug groups, the National School Boards Association and other organizations representing school administrators, and the U.S. Justice Department, whose argument for school censorship of anything that administrators disapproved was even broader than Starr's. Supporting Frederick were groups across the political spectrum fearing the implications of Starr's argument for any kind of student speech that disagrees with an official school educational message, whether religious, political, or recreational.

Thus, the Rutherford Institute, Liberty Counsel, Liberty Legal Institute, and Christian Legal Society sided with Frederick, along with the National Coalition Against Censorship, Student Press Law Center, Students for a Sensible Drug Policy, Drug Policy Alliance, and Lambda Legal Defense and Education Fund, among others. The brief of the Drug Policy Alliance explained to the Court the legislative, electoral, and judicial debates over marijuana reform in Alaska, thus undermining Starr's argument that "Bong Hits 4 Jesus" was not making a political statement. The ACLU represented Frederick in the case.

Update: On June 25, 2007, the Supreme Court, narrowing Tinker, ruled that Morse did not violate Frederick's First Amendment rights. See Supreme Court Carves Out a New Exception to Student Free Speech. For the National Coalition Against Censorship brief, co-sponsored by FEPP, click here.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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