Morse v. Frederick (06-278)
This page will continue to have further detail and analysis of the “Bong Hits for Jesus” case which was heard in the Supreme Court on March 19, 2007 and decided on June 25, 2007.
On the right are links to court documents and filings regarding the case.
Supreme Court reversed the Ninth Circuit on somewhat narrow grounds, saying that the phrase “Bong Hits 4 Jesus” specifically advocated illegal drug use, the unfurling of the banner was close enough to be considered to be at a school-sponsored activity, and that Morse was allowed to censor the banner.
Text of the decision (pdf)
Early analysis from ScotusBlog:
Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:
I join the opinion of the Court on the understanding that (a) it goes no further than 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.’”
The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.
Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
…. The Chief Justice’s opinion, too, indicates that the case would have come out differently if the banner had “convey[ed] any sort of political or religious message,” such as that involved in “political debate over the criminalization of drug use or possession,” rather than (in the Court’s view) mere “student speech celebrating illegal drug use.”
Debate, political and religious messages — protected. “Celebration” of illegal activity (drug use, anyway) — no go. That’s the upshot.
Here are some other interesting points in the decision:
- Justice Thomas’ concurrence is a bit unusual. Basically, he said that he doesn’t believe that students have any free speech rights at all, and he’s just happy that this ruling limits them a little bit more.
- Breyer in his dissent in part, concurrence in part says that the Court should have ruled that the Principal wasn’t liable for damages since she was acting in good faith, but that the Court shouldn’t have ruled at all on the First Amendment issue.
- Stevens, Souter and Ginsburg dissented:
I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibit-ing willful conduct that expressly “advocates the use of substances that are illegal to minors.” App. to Pet. forCert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.
In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amend-ment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed. […]
it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy. […]
To the extent the Court independently finds that“BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that. […]
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.
- The dissent, written by Stevens, also had this remarkable passage:
Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. 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.
From Court may untangle student-speech cases with ‘Bong Hits’ by Tony Mauro at First Amendment Center.
The dispute arose in advance of the Winter Olympics of 2002. The Olympic torch relay was passing through Juneau as the torch was on its way to Salt Lake City, and Juneau schools decided to turn the event into a teachable moment by letting students watch.
At Juneau-Douglas High School, Principal Deborah Morse allowed students, under supervision, to watch the torch runner pass in front of the school. School cheerleaders and the pep band performed.
Some students watched from across the street as well — significantly, not on school property. In that group, student Joseph Frederick had other plans for when the torch passed. As cameras recorded the moment, he and other students unfurled a large banner that read: “BONG HITS 4 JESUS.” He later described it as a humorous, meaningless, and not at all pro-drug, message.
When Morse asked the students to take down the banner, all complied except Frederick, who asserted his First Amendment rights. Morse grabbed and crumpled the banner and suspended Frederick for five days. During a later discussion, according to his brief, Frederick quoted Thomas Jefferson to her — and his suspension was increased to 10 days. Frederick sued in federal court.
[Note: the degree to which the event was “supervised” is open to interpretation. It appears that may have been much more informal, with no attempt to control whether students remained.]
The school won in the district court, but the 9th Circuit court overturned and ruled that the Principal (Morse) had violated the First Amendment rights of the student (Frederick) and could be held liable for damages.
The school board appealed the case to the Supreme Court, led by attorney Kenneth Starr (known primarily to the public for his role as special counsel in the Monica Lewinski blow job case), who is acting pro-bono. On December 1, 2006, the Supreme Court agreed to hear the case.
This case deals with the free-speech rights of students versus the authority of schools to control certain messages. A separate issue deals with whether Morse had immunity from damages (the 9th Circuit ruled that she didn’t — that essentially she should have known that her actions were a violation of the student’s free speech rights).
Complications include the fact that the speech took place off school property at a non-school event, and did not directly cause a disturbance to the educational process. There is also the question as to what the phrase “Bong Hits 4 Jesus” means. Frederick claims it was a nonsensical phrase he saw on a sticker that he thought would get attention. Those arguing for Morse say the phrase is clearly advocating an illegal act. This has the potential for some rather surreal discussions with the Justices.
Those on the side of petitioner Morse (Starr, D.A.R.E., etc.) also appear to want the Supreme Court to give schools wide latitude to identify and censor any drug-related speech as counter to their anti-drug/zero-tolerance/abstinance-only message mission.
Those opposed (Student Press Law Center, SSDP, etc.) are concerned for the potential of chilling a wide range of student speech, including speech off-campus, and including speech that may have political value.
Note: the ACLJ (much different than the ACLU) has joined in on the side of Frederick, although being strongly opposed to the “Bong Hits 4 Jesus” message (whatever that is), because they’re concerned that increasing the power of schools to censor student speech might one day be used to suppress religious expression.
(See links at right.) Tinker v. Des Moines Independent Community School District established that schools may not suppress speech unless it provides a significant disruption to the educational process. Hazelwood School District v. Kuhlmeier dealt with the ability to control student speech that would likely appear to carry the sanction of school administration (such as a school newspaper or yearbook or a planned speech at a public event, where the school specifically provides the platform for the speech. Bethel School Dist. No. 403 v. Fraser provides that even speech that doesn’t substantially disrupt the educational process can be suppressed if it is sexually vulgar and lewd.
In Morse v. Frederick, those arguing for the petitioner Morse appear to be attempting to combine the three cases to allow suppression of drug-related speech that, in the opinion of school officials, undermines the school’s propaganda efforts. This speech, they claim is, by its very nature, both vulgar significantly disruptive.
Those arguing on behalf of the respondent Frederick note that Frederick’s actions did not fall into any of the three controlling cases.
An additional complication is that then Judge Alito wrote the opinion in Saxe v. State College Area School District, which analyzed the interplay of those three cases and determined that speech that did not specifically fall under those three was protected under the Constitution.
The 9th Circuit lays out the issues and points out some interesting quirks in the case.
Frederick’s banner… was displayed
outside the classroom, across the street from the school, during
a non-curricular activity that was only partially supervised
by school officials. It most certainly did not interfere with the
school’s basic educational mission.
- From 9th Circuit opinion, page 2478
The issue of “illegal” drug use is a little complicated under Alaska law.
Alaska has an express constitutional right to privacy that the federal constitution
does not have. The Alaska Supreme Court has held unanimously
that the state had the burden of justifying its statute prohibiting marijuana
use, and “no adequate justification for the state’s intrusion into the citizen’s
right to privacy by its prohibition of possession of marijuana by an
adult for personal consumption in the home has been shown.” … Frederick was an adult citizen of Alaska, not a minor, at the time he displayed the sign.
- From 9th Circuit opinion notes, page 2468-2469
Starr, the U.S. Government and D.A.R.E. lay out new areas of power for school administrators, while attacking libertarian principles.
Here, had Principal Morse failed to react to Frederick’s
inappropriate display, she would have foregone an
opportunity to teach her students—including Frederick—
that they should be law-abiding citizens. And she would
have failed to protect her students from further exposure
to a harmful message.
- From DARE brief, page 21
… an effective anti-drug program
must not only teach the dangers of drugs; it must also
protect impressionable young people from the countervailing
effects of peer pressure. At a minimum, such a
program entails prohibiting student advocacy of illegal
drug use in school or at school events, where students
are entrusted to the schools’ care. […]
If schools permitted advocacy of illegal drugs, such speech
could counteract, if not drown out, the schools’ anti-drug
message, especially because of peer pressure. Permitting
students to make light of the school’s anti-drug
message or launch a pro-drug use campaign would undermine
both that message and the school’s disciplinary
authority generally. […]
The juxtaposition between an event honoring amateur athletic competition
and the use of marijuana made the speech particularly disruptive. [emphasis added]
- From U.S. Government brief, page 13, 17, 18
… the court of appeals substituted its unforgiving libertarian worldview for the considered judgment of school officials (and school boards) in seeking, consistent with Congress’ statutory mandate, to foster and encourage a drug-free student lifestyle. […]
As to both the First Amendment and the law of qualified immunity, the court of appeals’ uncompromisingly libertarian vision is deeply unsettling to public school educators across the country. The decision below is doubly — and dangerously — wrong.
- From the Morse brief, page 15
The Student Law Center notes the “new” provisions being requested by the U.S. Government, and point out the educational value of protecting the Constitution.
There is likewise no constitutional exception, as Petitioners argue, for “subject-changing” speech that diverts the audience’s attention away from the school’s preferred message. […]
Robust independent student speech is fundamental in a democratic society. Not only is it constitutionally safeguarded, but it also provides students with a powerful and vital civics lesson. This Court has stated repeatedly that the fact that schools are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. […] ( It is most important that our young become convinced that our Constitution is a living reality, not parchment preserved under glass. ).
- From the Student Press Law Center brief, page 5 and 29.
From the Supreme Court hearing:
MR. KNEEDLER: … a, school does not have to tolerate a message that is inconsistent with its basic educational —
JUSTICE ALITO: Well, that’s a very — I find that a very, a very disturbing argument, because
schools have and they can defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of, of — of getting rid of speech that’s inconsistent with
- From the Supreme Court transcript, page 20
It’s a little early to make predictions at this point, and my idealism tends to be a handicap for accurate guesses, but it’s always interesting to speculate.
Start with this statement, for example:
“The student has a better case than the school,” said Martha Minow, professor at Harvard Law School. “But the trend of the Supreme Court has been toward curbing student speech and increasing deference to school administrators. If the school district wins here, it could have important ramifications.”
That’s the general sense that I’m getting from a number of directions. That if you analyze the case strictly on Constitutional grounds or even on precedent, Frederick wins easily. But conventional wisdom is that the Court will side with Morse and overturn the 9th Circuit. The Supreme Court has consistently ruled in favor of governmental authority in recent years, particularly if the drug war is invoked (which may be why Starr is pushing that button so hard).
On the other hand, the Court has been a protector of speech more than any other rights, and the potential new school powers that Starr asserts as necessary, are blatantly offensive to free speech principles.
Finally, the Court could just wimp out and focus their opinion on the immunity issue.
- Ross Runkel in the Supreme Court Times predicts for Morse, but uses as part of the reasoning that Frederick was advocating an illegal act, something that is not clearly supported in the filings. Runkel somehow claims that the phrase “Bong Hits 4 Jesus” is in its very nature not a “lawful opinion” (as opposed to the armbands in Tinker) — a rather bizarre and frightening notion — one which would actually make the Alaskan Supreme Court guilty of unlawful opinions regarding marijuana.
Early reactions to the Oral Hearings:
- SCOTUSblog, as always, has great analysis: here, here, and here
The Supreme Court on Monday toyed with the notion that public school officials should have added discretion to censor student speech that they may interpret as advocating use of illegal drugs. But this was only a flirtation, not a warm embrace. During the argument in Morse v. Frederick (06-278), a clear majority of the Justices showed significant skepticism about creating a wide exception to the curb on suppression of student speech that the Court spelled out in 1969 in Tinker v. Des Moines School District
As blog colleague Marty Lederman has pointed out in the post below, a sweeping exception to Tinker had the visible support Monday of only Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, who seemed to be competing to lay out the most generous view of officials’ discretion to enforce school-preferred messages.
- Coverage from PBS
- Crumple Zone: Drug Warriors Push Broad Censorship of Student Speech by Jacob Sullum at TownHall
- Dahlia Lithwick in Slate
We’ve come a long way since “Fuck the Draft.”
- Up in Smoke at the High Court by Dana Milbank
So maybe this is why all those figures in the Supreme Court friezes are wearing togas.
- New York Times editorial
The Bush administration joined the school district in arguing that schools have broad authority to limit talk about drugs because of the importance of keeping drugs away from young people. But if schools can limit speech on any subject deemed to be important, students could soon be punished for talking about the war on terror or the war in Iraq because the government also considers those subjects important.
- Washington Post editorial
WHAT IS a bong hit 4 Jesus? We’re not sure, and we doubt anyone really knows what the phrase means — which is one reason the Supreme Court ought not to regard it as prohibited speech.
Shortcut address to this page:
Location of incident. Frederick was standing across Glacier Avenue (Route 7) opposite the school.
Court Documents Online
Briefs in the Supreme Court case
(all pdf files)
“bullet” Amicus Curiae briefs (briefs from interested outside parties who feel they have relevant arguments to add to the case)
“bullet” Certiorari documents (regarding requesting the Supreme Court to consider the case)
“bullet” Amicus briefs related to Certiori or earlier arguments:
Arguing the Case
For petitioner Morse:
Kenneth W. Starr
Kirkland & Ellis LLP, Los Angeles, CA
For respondent Frederick:
Douglas K. Mertz
Mertz Law Office, Juneau, AK
Other cases with relevance
Sites with legal information on the case
Websites of interested parties
Joseph Frederick, from a yearbook photo.
Frederick’s years since unfurling the banner have been… interesting. He received a settlement from the Juneau Police Department for harassment happening after the Bong Hits incident, and his father received a settlement from his employer — the school district’s insurance company (he claims he was fired for not pressuring Joseph into dropping the suit). Joseph Frederick is now teaching English in China.
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