Morse v. Frederick, 551 U.S. 393 (2007) Eric Ceresa

Background On January 23, 2002, at a school-sanctioned and school-supervised viewing of the passing of the Olympic Torch through Juneau, Alaska, high school principal Deborah Morse saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Morse directed the students to take down the banner. One of the students, Joseph Frederick, refused. Morse confiscated the banner and later suspended him. The school superintendent and board upheld the suspension, saying that it was appropriate because school policy forbade advocating illegal drug use.

Lower Court Rulings Frederick filed suit under 42 U. S. C. §1983, arguing that his first amendment rights had been violated. The District Court dismissed the suit, finding that Morse, the superintendent, and the board had immunity, and that Frederick’s rights had not been violated (citing Bethel v. Fraser). The 9 th Circuit Court reversed the decision. It found that the school had not demonstrated substantial disruption (citing Tinker v. Des Moines), and that the student’s rights were so firmly established that a reasonable principal should have known her actions were unconstitutional.

Supreme Court Arguments The school board petitioned the US Supreme Court to review the 9 th Circuit’s decision, and the Court agreed on December 1, Oral arguments were heard on March 19, Kenneth Starr represented the principal and district. He cited Tinker v. Des Moines, 393 U.S. 503 (1969), saying “that there is a right to political speech subject to disruption—that the speech not be disruptive.” Starr argued that the sign was disruptive because it violated the school’s rules banning advocacy of illegal drug use. Starr also cited the cases of Bethel School District v. Fraser, 478 U.S. 675 (1986) and Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). Starr said that the Tinker decision did not set written policy; it was an issue of “standardless discretion.” Justice Souter remarked that 'Bong Hits 4 JESUS' “sounds like just a kid's provocative statement to me.” Starr responded that “the key is to allow the school official to interpret the message as long as that interpretation is reasonable.”

Supreme Court Arguments Douglas K. Mertz, representing Frederick, argued, “This is a case about free speech. It is not about drugs.” Chief Justice John Roberts responded, “It's a case about money. Your client wants money from the principal personally for her actions in this case.” Mertz argued that the event, off school grounds, was not school- sponsored, that "BONG HiTS 4 JESUS" not a pro-drug message, but a humorous one, and that the banner did not cause any disruption to school activities. Based on these facts, he concludes, his case "does not present the issue of school authority over student expressions on campus or in a school-sponsored activity". In Starr’s rebuttal, he cited Vernonia School District 47J v. Acton and Board of Education v. Earls as cases demonstrating the Supreme Court's strong past stances on matter related to combating the “scourge of drugs.” Starr further argued that promoting drugs was inconsistent with the mission of the school, and that Tinker v. Des Moines established limits on what schools could and could not do to limit school speech. This case, he argued, fell within these limits.

Supreme Court Decision The majority found for the school district, upholding the confiscation of the banner and the suspension. Chief Justice Roberts, writing for the majority, determined that the expression did indeed fall under the “school speech” definition. Roberts said, “Under these circumstances, we agree with the superintendent that Frederick cannot ‘stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.’”

Supreme Court Decision Roberts, writing for the majority, next decided that the principal had correctly interpreted the banner as promoting illegal drug use. Roberts admits the banner was “cryptic,” but writes, “First, the phrase could be interpreted as an imperative: “[Take] bong hits …”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits.” Roberts countered the dissenting view that Frederick just wanted to get on television, saying “But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says.” Roberts further countered the dissenting view that the banner represented political speech about a divisive issue, saying that “not even Frederick argues that the banner conveys any sort of political or religious message.”

Supreme Court Decision Roberts and the majority finally decided that the principal was within her rights to censor this expression because of the district’s “important— indeed, perhaps compelling interest” in preventing student drug use. Roberts argued that Tinker v. Des Moines establishes that schools can censor speech that would “materially and substantially disrupt the work and discipline of the school.” Roberts further argued that Bethel v. Fraser established that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Roberts cited Hazelwood v. Kuhlmeier, which established that schools could “exercise editorial content over the style and content of student speech in school-sponsored expressive activities.” Justice Clarence Thomas wrote a concurring opinion, arguing that Tinker v. Des Moines should be overturned. He said that “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.” Alito and Breyer concurred for different reasons.

Dissenting Opinions Justices Stevens, Ginsberg, and Souter dissented. Stevens argues that “the Court does serious violence to the First Amendment in upholding— indeed, lauding—a school's decision to punish Frederick for expressing a view with which it disagreed.” For the dissenting justices, Stevens further wrote, “the school's interest in protecting its 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 television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.” Stevens also argued that the banner was not a serious endorsement of drug use, saying, “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.”

Impact It has been argued that this erodes students’ First Amendment rights, continuing the trend established in Bethel v. Fraser and Hazelwood v. Kuhlmeier. Kenneth Starr noted that Roberts kept the decision very narrow, applying only to advocacy of illegal drug use, not other student expression; Alito’s concurring decision agrees. Subsequent related decisions by lower courts have been inconclusive; some have found the decision narrow, limited only to speech advocating drug use, while others have argued that it is broader and applied it to speech that is interpreted as threatening school violence.

References ABC News. (2007, March 15). 'Bong hits 4 Jesus': Student protest goes to Supreme Court. Retrieved from Cornell University Law School. (n.d.). MORSE v. FREDERICK (No ) 439 F. 3d 1114, reversed and remanded. Retrieved from Mears, B. (2007, June 25). 'Bong hits 4 Jesus' case limits student rights. CNN. Retrieved from 25/justice/free.speech_1_principal-deborah-morse-banner-case- school-policy?_s=PM:LAW Illinois Institute of Technology Chicago-Kent School of Law. (n.d.). Morse v. Frederick. The Oyez project. Retrieved from Wikipedia. (n.d.). Morse v. Frederick. Retrieved from