1. Morse v. Frederick
A U. S. Supreme Court Case

2. The First Amendment What is the First Amendment?
Is all speech protected?
Who decides?

3. Freedom of Speech in Schools
Do kids have the same rights as adults?
Do students in a public school have the same rights they would in a non-school setting?

4. Standards Re School Speech
Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker
Freedom of expression cannot be restricted unless it would “materially and substantially disrupt the work and discipline of the school.” Tinker

5. BUT…
“[T]he constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings.” Bethel
Rights of students under the First Amendment “must be ‘applied in light of the special characteristics of the school environment.’” Hazelwood
Certain speech may be regulated in a school environment “even though the government could not censor similar speech outside the school.” Hazelwood

6. January 24, 2002 – a high school in Juneau, Alaska
Facts of the Case
January 24, 2002 – a high school in Juneau, Alaska
The Olympic Torch Relay was passing through Juneau and was to pass in front of a local high school during school hours. The school principal, Deborah Morse, allowed staff and students to observe the relay from the street as an approved class trip. It was supervised by teachers and administrators.
Joseph Frederick was a student who, along with some of his friends, displayed a banner as the torchbearers and camera crews passed by.

7. The banner read
“BONG HiTS 4 JESUS”

8. The banner was 14-feet long.

9. How did the school react?
Principal Morse asked the students to take down the banner.
Frederick was the only student who refused.

10. So what happened to Frederick?
Frederick was suspended from school for 10 days.
Principal Morse explained to him that the banner had promoted illegal drug use contrary to school policy.

11. The Applicable School Policies
Juneau School Board Policy No provides “The Board specifically prohibits any assembly or public expression that advocates the use of substances that are illegal to minors.”
Juneau School Board Policy No provides that “[p]upils who participate in approved school events and class trips” are subject to the same rules that apply during standard school programs.

12. The Administrative Appeal
Frederick administratively appealed his suspension, which was upheld by the superintendent:
(a) Frederick displayed the banner “in the midst of his fellow students, during school hours, at a school-sanctioned activity.”
(b) Frederick “was not disciplined because the principal ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.”
(c) Frederick’s “speech was not political… [&] was not advocating the legalization of marijuana or promoting a religious belief [His] speech was potentially disruptive to the event and inconsistent with the school’s educational mission….”

13. The District Court
Frederick filed suit in federal court, alleging that Principal Morse and the school violated his First Amendment rights.
The District Court granted judgment in favor of the school, holding, among other grounds, that Frederick’s First Amendment rights had not been violated.
The Court held that Principal Morse reasonably interpreted the banner as promoting illegal drug use in violation of school policy and had the obligation to stop the display at a school-sanctioned activity.

14. The Ninth Circuit Frederick appealed the District Court’s decision.
The Ninth Circuit reversed.
The Ninth Circuit held that the school punished Frederick without a reasonable showing that the speech gave rise to “a risk of substantial disruption.”

15. The “Supremes”
Principal Morse and the school appealed to the Supreme Court.
The Supreme Court decided to hear the case to address the issue of whether Frederick had the right to display his banner.

16. You are going to take the case to the Supreme Court.
The court must decide whether Principal Morse’s actions violated Joseph Frederick’s 1st Amendment right to freedom of speech.
You will take the roles of:
1. Attorneys for the school district and Principal Morse, who argue that her actions were constitutional.
2. Attorneys for Frederick, who argue that Principal Morse and the district violated his constitutional rights.
3. Supreme Court justices, who must decide whether Principal Morse’s actions were constitutional.

17. To prepare for the case:
Justices: Think of at least three questions for each side that will help you decide the case.
Attorneys: Prepare arguments to present to the justices. Decide who will present your arguments and who will answer questions.
Rules of Oral Argument
1. Attorneys for Morse and the school district will present first followed by attorneys for Frederick.
3. Attorneys shall direct comments to the Justices and begin by saying “May it please the Court. My name is __ and I represent ___.”
3. Justices will ask questions of both sides at the end of both arguments.

18. The Decision of the Court
A majority of the nine justices (Roberts, C.J., Scalia, Kennedy*, Thomas*, Alito*) agreed that Principal Morse did not violate Frederick’s First Amendment rights.
The phrase “BONG HiTS 4 JESUS” could reasonably be interpreted as condoning illegal drug use.
Discouraging drug abuse is an important, Congressionally mandated role of public schools.
Because Frederick attended an event that occurred during school hours and was school-sponsored, he was subject to district policy and rules of conduct.
The First Amendment does not require toleration of pro-drug student expression at school events, and it was constitutional for the principal to take the banner.

19. Three Justices – Separate Opinions
Thomas’ concurring opinion:
The First Amendment does not protect student speech in public schools.

20. Alito/Kennedy Concurring
Joins the opinion of the Court but writes a concurring opinion to clarify that he is joining the majority with the understanding that the opinion of the Court
(1) is limited to holding “that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use”
(2) does not support “any restriction of speech that can plausibly be interpreted as commenting on any political or social issue”
States that this type of “regulation” is “at the far reaches of what the First Amendment permits.”

21. Breyer – Concurs in Judgment
Breyer writes opinion concurring in the judgment but partially dissenting
Believes the ultimate decision of the Court is correct, but that the Court should not have addressed the First Amendment issues.
Court should have based its ruling on a more narrow issue.

22. Dissenting Opinions
Three justices (Stevens, Souter and Ginsburg) dissented and thought Frederick’s constitutional rights had been violated. They reasoned that the First Amendment should protect student speech “if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students.”

23. The dissenting justices argued that Frederick’s banner was an “oblique,” “nonsense” message that, while it had a drug theme, did not expressly promote drug use and did not interfere with the school educational mission. Frederick merely wanted to be on TV.
The dissenters stated: “Most students do not shed their brains at the schoolhouse gate…The notion that the message on this banner would actually persuade either the average student or even the dumbest one to [do drugs] is most implausible.”

24. Dissenting Justices believe majority opinion “invites … viewpoint discrimination.”
Felt that carving out protection for “pro-drug speech for particularly harsh treatment” is contrary to the First Amendment.

25. Alternative Slogans Bong hits are a good thing. Take bong hits.
Legalize bong hits.
Bong hits for cancer patients.
Wine sips for Jesus.

26. For Discussion… Who do you think was right?
How many of you changed your minds about the law after arguing the case?
Was it difficult to argue for a side you did not believe in?
How would you feel if this case happened in your school?