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Commentary

Supreme Court Carves Out a New Exception to Student Free Speech

By Marjorie Heins

(June 25, 2007) - In a fractured decision, the Supreme Court today approved the punishment of a high school student for unfurling a banner with the nonsense message "Bong Hits 4 Jesus" across the street from his school while the U.S. Olympic Torch Relay passed by.

Eighteen year-old Joseph Frederick insisted that his banner had no particular message except to assert his right to free speech. But Chief Justice Roberts's opinion for four members of the Court in Morse v. Frederick said the banner could be "reasonably regarded as promoting illegal drug use," and that this was enough to override Frederick's interest in free speech. The Court also rejected Frederick's argument that his banner had full First Amendment protection because it was displayed off school property, and not at a school sponsored event.

Roberts's opinion swept broadly, rejecting the traditional First Amendment standard for school censorship that the Court established in the famous Vietnam War era case of Tinker v. Des Moines School District 38 years ago. Under Tinker, school officials can only punish student speech - in that case, black armbands opposing the war - if they have a reasonable basis to believe it will cause "substantial disruption."

In 1986, the Court cut back on Tinker by allowing the punishment of a student who gave a sexual innuendo-laden speech at a school assembly. In Bethel School District v. Fraser, the Court said that the vulgarity of the speech justified censorship in the context of a school-sponsored event. In today's case, Chief Justice Roberts expanded on Fraser and essentially dispensed with the "substantial disruption" standard. It was enough, for Roberts, that schools have an interest in deterring illegal drug use, and therefore banning any speech that might be interpreted to advocate it.

Justices Alito and Kennedy weighed in with an important concurring opinion that limited the breadth of Roberts's ruling in Morse v. Frederick. They joined the opinion of the Court, they said, only "on the understanding that (a) it goes no further than to 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."

Under this approach, political dissent by students would be protected, but it is unclear how school officials, students, or judges are supposed to distinguish between speech that "a reasonable observer would interpret as advocating illegal drug use," and 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 ..."

Indeed, Alito and Kennedy seemed to assume that everyone, including teenagers, makes neat distinctions between political discourse and silly slogans, or advocacy of illegal conduct. In the real world of social and political debate, slogans, banners, and what could easily be interpreted as advocacy of illegal conduct are inevitably mixed with more abstract or scholarly argument, including advocacy of changes in the law.

Alito and Kennedy were responding in part to a dissent by Justice Stevens, joined by Justices Souter and Ginsburg, that took Roberts to task for creating a new standard that "invites stark viewpoint discrimination" by allowing school administrators to suppress student opinions that depart from official policy. Stevens pointed out that "unfettered debate, even among high school students," is essential to democracy.

One might say that it is especially essential among high school students.

But Stevens, Souter, and Ginsburg undermined the force of their dissent by accepting that in public schools, officials may suppress student speech that "violates a permissible rule" or "expressly advocates conduct that is illegal and harmful to students." Their disagreement with the Court majority, instead, turned on their interpretation of "Bong Hits 4 Jesus." The banner, they said, "was never meant to persuade anyone to do anything."

Thus, although Stevens, Souter, and Ginsburg started their dissent by condemning viewpoint discrimination in public schoools, they ended by endorsing it - at least when the viewpoint expressed is interpreted to advocate "illegal and harmful" conduct. Like Alito and Kennedy, the dissenters don't try to grapple with the difficulty of distinguishing between political dissent and advocacy of illegal conduct, although they do point out that there have been many changes in public opinion and policy over the years: the legitimacy of wars, the prohibition of alcohol, and current debates over drug legalization are examples of areas where advocacy of illegal conduct has not been readily distinguishable from political dissent. Advocacy of sit-ins and freedom rides to protest official segregation provide other examples.

Justice Thomas wrote a concurring opinion arguing that Tinker v. Des Moines should be explicitly overruled. Justice Breyer wrote separately to argue that the Court did not need to reach the ultimate constitutional issue because all it really had to decide was that Deborah Morse, the principal who punished Frederick for his banner, was entitled to "qualified immunity" from money damages.

The fractured decision in Morse v. Frederick arguably represents another nail in the coffin of student free speech - which, like adult free speech, is often provocative or irresponsible - and another step toward a more controlled and authoritarian view of public education. However confused (and difficult to implement) the distinctions made by the Court, though - especially in the concurrence of Alito and Kennedy - there was at least a recognition that speech about drugs has a political dimension and that, in the words of Tinker, students do not lose all constitutional rights "at the schoolhouse gate."

The decision in Morse v. Frederick, S.Ct. No. 06-278 (June 25, 2007), can be found at http://www.supremecourtus.gov/. For more on Morse, see the National Coalition Against Censorship's friend-of-the-court brief.


The Free Expression Policy Project began in 2000 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. The FEPP website is now hosted by the National Coalition Against Censorship. 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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