Morse v. Frederick (2007) timeline:
Jan. 24, 2002: Joseph Frederick, a senior at Juneau-Douglas High School, unfurls a
banner that says “Bong Hits 4 Jesus” during the Olympic torch relay through town. He
stands across the street from the school, which released students early to watch the relay.
Principal Deborah Morse tells Frederick to put away the banner. When he refuses, she
confiscates it. Frederick receives a 10-day suspension for violating a school policy that
bans advocating illegal drug use. He appeals his suspension to the superintendent, saying
the banner was meant to be “meaningless and funny” to get on television. The
superintendent upholds the punishment, saying the banner caused a disruption at school
and interfered with its educational mission.
March 19, 2002: The Juneau Board of Education upholds Frederick’s suspension.
April 25, 2002: Frederick sues Morse and the Juneau School District in U.S. District
Court, District of Alaska, saying his right to free speech was violated. He argues that he
was off school property and not subject to school policies.
May 27, 2003: The U.S. District Court rules in favor of the school district, granting its
motion for a summary judgment (meaning it agrees that no trial is necessary after
assessing physical evidence, documents and depositions in the pretrial discovery phase).
July 8, 2004: Frederick files an appeal with the 9th U.S. Circuit Court of Appeals.
March 10, 2006: The 9th Circuit appeals court reverses the lower court, ruling that the
school district violated Frederick’s rights when it censored “non-disruptive, off-campus
speech.” The appeals court uses Tinker (students have the right to free speech as long as
it does not materially or substantially disrupt the school) as the basis for its ruling.
The appeals court also says Morse is not entitled to qualified immunity in the case and
can be sued for damages. The U.S. Supreme Court’s doctrine of qualified immunity
generally holds that government officials may not be sued for damages unless they have
violated “clearly established rights of which a reasonable person would have known.”
Morse appeals to the U.S. Supreme Court, asking the justices to determine (1) whether
schools can restrict speech advocating illegal drug use at school-sponsored events and (2)
whether educators have immunity from being sued for damages in such cases. Frederick
argues that he should not be punished because he was off campus, the event was not
sponsored by the school, and school was not disrupted.
Dec. 1, 2006: The U.S. Supreme Court agrees to hear Morse v. Frederick, which has
drawn national attention. “Friend of the court” briefs are filed for both sides by a diverse
collection of organizations, including the National Coalition Against Censorship, the
Student Press Law Center, Drug Policy Alliance, D.A.R.E. America, and the National
School Boards Association. Kenneth Starr, a former independent counsel who led an
investigation of President Bill Clinton, is representing Morse and the school district pro
bono.
June 25, 2007: The U.S. Supreme Court decides, 5-4, that Frederick’s rights were not
violated, saying schools have the right to restrict student speech that advocates illegal
drug use. The issue of school officials’ liability for damages is not addressed because no
constitutional violation is found.
Majority opinion, written by Chief Justice John G. Roberts Jr., concurring are Justices
Clarence Thomas, Anthony Kennedy, Antonin Scalia and Samuel Alito.
First, this case does involve student speech. The banner was unfurled at a schoolsponsored event during school hours. Students were released to watch the torch relay as
an “approved social event or class trip” under the supervision of faculty and staff. School
board policy says that student conduct rules apply on class trips.
Schools may act to protect students from speech can be reasonably interpreted as
promoting illegal drug use. The principal’s view that “Bong Hits 4 Jesus” could be
interpreted as encouraging illegal drug use is reasonable. Tinker protects students’ right
to political speech that does not substantially disrupt the school. However, as Frederick
himself says, the banner was not political speech.
The court previously has held that the rights of students in school are not the same as the
rights of adults in other settings and that students’ free speech rights may be limited when
applied “in light of the special characteristics of the school environment.” Previous
rulings also confirmed that schools may regulate some speech in school for valid
educational purposes.
In the context of the Fourth Amendment, court rulings suggest that while students
maintain their constitutional rights in school, “the nature of those rights is what is
appropriate for children in school.”
Schools have an “important” and “compelling” interest in educating children about illegal
drugs. Several national studies and reports point to the growing problem of drug abuse
among youth. Congress has declared that schools must educate students about the
dangers of illegal drugs and has provided billions of dollars toward that goal.
Concurring, Justices Kennedy and Alito limit the scope of the majority’s opinion to
restricting student speech that advocates the illegal drug use. They say there is no support
for limiting speech that can be interpreted as political or social commentary, such as
legalizing marijuana for medical use.
Concurring, Justice Thomas says Tinker should be overturned. He asserts that the First
Amendment was never intended to protect student speech.
Some key cases cited:
Limiting student speech
Bethel School District v. Fraser (1986): The U.S. Supreme Court rules that schools are
allowed to censor vulgar and lewd speech because it is inconsistent with the basic values
of public school education. The court makes a distinction between protected political
speech in Tinker and vulgar and lewd speech. The court also says that simply because
adults have the right to use an offensive form of expression to make a political point, that
does not mean students have the same right.
Hazelwood School District v. Kuhlmeier (1988): The U.S. Supreme Court upholds the
right of school authorities to restrict student speech in school-sponsored activities for
valid educational reasons.
Students’ rights in school limited
New Jersey v. TLO (1985): In a case involving the search of a student caught smoking at
school, the U.S. Supreme Court abandons its requirement that a search can be conducted
only when there is “probable cause” that a crime has occurred and that a search warrant
must be obtained. The justices say the legality of school searches depends only
reasonable grounds that the student has violated the law or school rules. Because school
officials need to maintain a learning environment, they should not be held to the same
requirements as public authorities.
Vernonia School District v. Acton (1995): In a case involving a random drug-testing
policy for high school athletes, the U.S. Supreme Court decides that the search and
seizure clause of the Fourth Amendment is not violated. It says students, under the
supervision of the school, are subject to greater control than adults in other settings.
”Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are
different in public schools than elsewhere.”
Dissenting opinion, written by Justice John Paul Stevens and joined by Justices David
Souter and Ruth Bader Ginsburg:
Rather than a pro-drug message, “Bong Hits 4 Jesus” was a “nonsense message”
designed to draw the attention of TV crews at the event. Frederick should not be punished
simply because the message contained a vague reference to drugs.
Morse said she removed the banner because she disagreed with what she deemed a prodrug message. But speech should not be restricted because a listener or society disagrees
with the message. Banning a particular expression has to be justified by more than a
desire “to avoid … the unpleasantness” that comes with an unpopular viewpoint.
Even if the school’s strong interest in protecting students supports its restriction on
speech advocating illegal drug use, it does not support prohibiting “an obscure message”
that a third party thinks is advocating illegal drug use.
Punishment for speech advocating illegal conduct is constitutional only when that
advocacy is likely to incite “imminent lawless action.” Promoting illegal drug use “hardly
justifies censorship.”
Some key cases cited:
Tinker v. Des Moines Independent Community School District (1969): The U.S. Supreme
Court upholds the students’ right to free speech in schools as long as it does not
materially or substantially cause a disruption in school or infringe on the rights of others.
Texas v. Johnson (1989): The U.S. Supreme Court says flag burning is protected speech.
The court says the expression of an idea cannot be prohibited “simply because society
finds the idea itself offensive or disagreeable.”
Brandenburg v. Ohio (1969): The U.S. Supreme court strikes down Ohio’s criminal
syndicalism law that prohibits speech advocating various illegal activities. The justices
say that such speech is prohibited if it is directed at inciting “imminent lawless action”
and is likely to cause such action.
Rosenberger v. Rector and Visitors of University of Virginia (1995): The U.S. Supreme
Court rules that the University of Virginia cannot deny funds for a student group’s
Christian magazine when it makes funds available to secular student publications. The
justices say that this amounts to viewpoint discrimination. The court says that if the
school promotes speech, it must promote all forms of speech equally.
Thomas v. Collins (1945): The U.S. Supreme Court strikes down a Texas law requiring
labor organizers to obtain a permit to solicit members at a rally. The court finds that the
distinction between advocacy and incitement cannot depend on how someone at the rally
might have understood the organizer’s speech.
Cox v. Louisiana (1965): The U.S. Supreme Court overturns a civil rights activist’s
conviction for disturbing the peace when he urged protesters to sit at segregated lunch
counters. It finds that the conviction for leading a peaceable demonstration that contains
speech that may potentially incite violence is unconstitutional.
Concurring and dissenting opinion: Justice Stephen Breyer contends that the
constitutional issue of students’ right to free speech did not need to be decided. The court
needed to decide only whether the principal is entitled to qualified immunity from
personal liability. He asserts that because the constitutionality of Frederick’s speech was
unclear at the time, Morse is entitled to qualified immunity.