Morse v. Frederick's last stand


Decision expected in landmark student expression case this summer





He was rushing to school that January morning after digging his car out of 10 inches of accumulated snow and ice. Somehow, his car started despite the below-zero temperatures. No matter, it was not the tardy bell he was worried about; he just wanted to make it to town in time for the parade.

Once he reached the crowds, he found a spot on a sidewalk along the parade route. Down the road, he caught a glimpse of the torchbearer heading right toward him, followed closely by the television cameras. As the torch closed in on him, he and his friends unrolled a banner with a special message for the crowd and camera: Bong Hits 4 Jesus.

This “absurdly funny” phrase was stripped from the hands of a high school student in 2002, quickly turning his prank into a censorship case. The lawsuit was thrust into the national spotlight after a high-profile defense lawyer signed on and the U.S. Supreme Court heard oral arguments last March for the case now known as Morse v. Frederick.

Making a statement

The day the 2002 Winter Olympics Torch Relay traveled through Juneau, Alaska, Joseph Frederick, then an 18-year-old senior at Juneau-Douglas High School, planted himself on a public sidewalk across the street from his school where he displayed his 14-foot, paper banner with “Bong Hits 4 Jesus” crudely scripted on it from a $3 roll of Duct Tape.

Standing across the street was his principal, Deborah Morse, along with other students who were released from school that day to attend the event. She crossed the road and demanded Frederick take down the banner. When he refused, she took the sign from him and gave him a 10-day suspension, five for his banner and five for quoting Thomas Jefferson: “Speech limited is speech lost,” Frederick said. Even after he appealed his punishment through the administrative ranks, Morse persisted that Frederick’s message was in strict violation of the school’s educational mission to prevent illegal drug use.

After failing to find support within the school district, Frederick filed a lawsuit against Morse and the Juneau School Board for allegedly violating his First Amendment rights and requested an injunction to have the suspension removed from his record.

A federal district court ruled in favor of the school district on the grounds that the event was “school-sponsored,” which it claimed gave school officials the authority to oversee and punish the actions of students in violation of school policies.

But Frederick did not stop there. He appealed his case to the Ninth U.S. Circuit Court of Appeals where the lower court’s decision was reversed in a unanimous ruling, stating that Frederick’s rights were violated.

That decision was based on the 1969 U.S. Supreme Court ruling in Tinker v. Des Moines Independent Community School District, which established that students’ free expression rights do not end at the “schoolhouse gate” and school officials can only censor students if their actions are substantially disruptive or infringe on the rights of others.

Unsatisfied with the decision, the school district took the case to the U.S. Supreme Court where justices heard oral arguments on March 19. Former Independent Counsel Kenneth Starr signed on as the school district’s lawyer, working for free.

Now 23 years old, Frederick has moved on from what he called his “free speech experiment” and is now studying Mandarin and Chinese history in China and teaching English to Chinese high school students. In a phone news conference held by the American Civil Liberties Union, which is providing his legal representation, he explained that he stopped his education at the University of Idaho just short of graduation to take the one-year contract offer that began in August, an obligation that kept him from attending the Supreme Court oral arguments. Frederick also did not want to share his experiences in China as an American, despite the obvious political differences of individual rights.

“I sort of have a nice quiet life…it’s sort of separate from the banner incident here, and I don’t want to mix it up,” Frederick said.

Motive behind the words

With a message so vague as “Bong Hits 4 Jesus,” it may have appeared to be an impulsive act to display the banner. But Frederick explained that it was not a spur-of-the-moment demonstration. He said he became interested in First Amendment rights while studying American law and government in high school, leading him to begin a “free speech experiment” that began with his refusal to stand for the morning Pledge of Allegiance and ended with a continuous conflict with the principal.

“I found the Bill of Rights to be very interesting and important,” Frederick said. “I began to realize that it was not as clear-cut as it seems. I encountered a few contradictions in my life with what I’d studied in books.”

Frederick said he purposefully stood where he could be seen by television cameras, assuming that school officials would not attempt to inhibit his rights in view of the camera lens.

He was wrong.

As for his message, Frederick said that it was never meant to have a serious meaning. It was a phrase he had seen on bumper stickers and found “absurdly funny.”

“The phrase…was never meant to have any substantive meaning and it certainly wasn’t intended as a drug or religious message,” Frederick said. “It’s not even a complete statement or thought.”

Rather than looking at the cryptic message, Frederick said people should see the expression in his action. As a high school senior, he said he felt the school did not believe in First Amendment rights for its students and he wanted to prove his inalienable rights.

“If you really want to know what I meant you’ve got to consider then scenario,” Frederick said. “I stood there until the perfect moment to reveal my banner. As the public eye, the TV cameras, passed by, I knew that if I held up the banner while in front of the camera, there was nothing the school administrators could do about it. What I was really saying was, ‘Look here. I have the right to free speech. I am asserting it, I have it and I’m using it.’ “

‘Strange bedfellows’ support First Amendment claim

As the case progressed, public support for the rights Frederick was asserting increased as demonstrated by the 16 organizations of varied missions and values that filed the 12 amicus curiae, or friend-of-the-court, briefs on behalf of his First Amendment claim before the Supreme Court. It is the idea of protecting free expression that has brought conservative, religious liberty groups such as the Alliance Defense Fund and the Liberty Counsel together with liberal-minded groups like the National Coalition Against Censorship and Students for Sensible Drug Policy. Alaska Civil Liberties Union Director Jason Brandeis pointed out that the number of briefs filed in the case reveals that his “humorous” message bears a serious side as well.

“We feel that bolsters Joe’s claims here,” Brandeis said, “and supports the notion that this case is about free speech first and foremost and it really illustrates the need to support all viewpoints that students seek to express, whether those views are political, religious or in this case, merely humorous or provocative.”

Brandeis’ counterpart at the American Civil Liberties Union, Steve Shapiro, agreed in that the briefs also address the “extraordinarily broad claim of authority” the school district says should permit school officials to censor any expression that opposes the school’s educational mission.

The American Center for Law and Justice is one of a few organizations that claim Frederick’s “incoherent” message should not be the focus for a case that could set a serious precedent for future student expression cases, but Jordan Lorence, senior counsel for the Alliance Defense Fund, is especially concerned about a ruling for the school district.

“Weighing in totally on the side of the public schools would give carte blanche to school officials…and the First Amendment [would be] meaningless [to students],” Lorence said.

He also pointed out that every group that filed a brief has at some point represented students with “controversial ideas.”

The organizations are also concerned about the exceedingly broad consequences in a ruling against Frederick, which would allow school officials the ability to censor student expression that takes place off school grounds. Even though they may not approve of the message’s allusion to illegal drug use, organizations like the Liberty Counsel, a Christian legal organization devoted to religious freedom, make it its mission to see that expressive, constitutional rights are protected from overreaching officials, according to Liberty Counsel Founder and Chairman Mathew Staver.

Jon Davidson of the Lambda Legal Defense and Education Fund, Inc., an organization that seeks to protect the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV, agreed that this shared view by different organizations is not unusual for a First Amendment case.

“It’s not about a particular position,” Davidson said. “It’s about the right to express the side of any position. And in that way it can make strange bedfellows.”

Arguing interpretation

As adamant were the amicus briefs, the oral arguments were even more contentious. The hour-long session at the Supreme Court became an interrogation session for the justices, some of whom visibly struggled to determine the approach necessary to make a fair ruling.

Starr pursued the argument that Frederick’s message was disruptive because it undermined the school’s educational mission and anti-drug policy, saying Tinker supported the school’s authority.

“The problem, Mr. Starr, is that school boards these days take it upon themselves to broaden their mission well beyond education or protection from illegal substances, and several briefs have pointed out school boards have adopted policies taking on the whole range of political issues,” Chief Justice John Roberts responded.

Associate Justice Ruth Bader Ginsburg also pursued Morse’s interpretation of the message and how, despite its reference to drugs, it does not clearly endorse drug use.

“But here one could look at these words and say it’s just nonsense,” Ginsburg said. “It isn’t clear that this is ‘smoke pot.’ “

Edwin Kneedler, deputy solicitor general for the U.S. Department of Justice, argued in support of the school, saying that whether or not Frederick was displaying an illegal, drug-endorsing message, it is the potential public interpretation that needs to be considered.

Representing Frederick, Attorney Douglas Mertz began his argument by reiterating Frederick’s First Amendment claim and the school’s wrongful jurisdiction over non-disruptive, off-campus student expression.

Whether or not Frederick’s message was political, Roberts argued that it “undermined” the school’s mission and questioned whether schools need authority over classrooms, field trips and activities that students are trying to use as open forums.

Mertz also said that expression contradictory to what the school deems appropriate can take place so as long as it does not “interfere with the school’s own presentation of its viewpoint,” to which justices tested phrases like “Rape is fun” and “Extortion is profitable” with Mertz’s claim. But Mertz said those examples do not apply to the case.

“What it was was a person displaying this banner in a quiet, passive manner that didn’t interfere with anybody’s observation,” Mertz said. “The fact that he was not there in school…turns this into a pure free speech case where you have a citizen in a public place event who was not acting as a student.”

A looming precedent

During the arguments, Mertz alluded to the strength of the Tinker decision, which has been a legal standard for student speech cases for nearly 40 years. Now with “Bong Hits” awaiting a ruling, attorneys, administrators and advocates are holding their breath for a possible new precedent and the effects to follow.

The Liberty Counsel’s Staver said the fact that Frederick’s off-campus speech could be prohibited is the “devastating part of this case,” which is why his organization took interest and filed an amicus brief.

The court could establish a much narrower ruling, and add “drug speech” to the list of unprotected student speech although that is unlikely, said David Greene, executive director of First Amendment Project, a nonprofit free speech law firm that also joined a brief in support of Frederick.

A current debate over drug possession in Alaska, a matter regularly brought before its state legislature, was mentioned by Shapiro of the American Civil Liberties Union as an example of civic, drug-related discussion for which students could be censored on or off school grounds because of the topic’s conflict with the school’s strict anti-drug policy.

The Alaska Supreme Court is currently reviewing a bill that would permit adults to possess small amounts of marijuana. Shapiro said that as young adults, students should be actively taking part in political debate and must be permitted to do so without regulation from schools.

“The way we do that in our system is by providing students with the information they need to be informed citizens and not by teaching them the worst civic lesson possible, namely that any speech that disagrees with the officials’ speech can lead to punishment,” Shapiro said.

Naomi Gittens, an attorney with the National School Boards Association and contributor to the organization’s amicus brief in favor of the school district, said that students should not be “overly concerned” about the court’s ruling.

She anticipates a “narrow” ruling, a format typically favored by Roberts. Associate Justice Antonin Scalia also suggested during the arguments a “narrow enough” ruling for a school to be able to “suppress speech that advocates violation of the law” whether or not they have an established student expression policy.

One way Gittens said a narrow decision could be made would be to limit the school’s authority in censoring any disruptive expression on campus and school-run activities or trips such as field trips or sporting events.

“Schools have two things in mind concerning their students: effective learning and school safety,” Gittens said. She added that schools are a place for learning, “not a free-for-all.”

In any situation, she said that no school administrator should be held liable for the actions of students because of the way the message was interpreted, with which Associate Justice Stephen Breyer agreed.

“[The principal’s] job is to run the school,” Breyer said. “What I’m worried about is a rule that…takes [Frederick’s] side. We’ll suddenly see people testing limits all over the place in the high schools. But a rule that against [the school’s] side may really limit people’s rights on free speech.”

For the record

Nearing the finish line in a case that began five years ago, Frederick said he has no regrets. Maturity and a better understanding of civil liberty and freedom are two outcomes Frederick has seen within himself, despite the question of his “drug message.”

“I’ve never professed to be perfect or to be a saint,” Frederick said. “This case is about integrity and maintaining the civil rights in the United States Constitution and the Bill of Rights. And to reduce this to some sort of mudslinging or personal character assassination is just wrong.”

Mertz said the allusion to drugs is far from the point of the case and that critics need to look beyond the sign.

“Debate by students on an issue of importance to them, importance to their school, importance to their country should not be cut off, should not be punished simply because school officials have a contrary viewpoint,” Mertz said. “Free speech is a true core American value that everyone believes in and we’re hoping that includes the members of this court.”

Ultimately, Frederick’s efforts have proven successful in raising questions in the First Amendment’s ability to protect students. His experiment is not only pending a decision for what he claims to be a violation of his speech rights, but also a precedent that could make or break the outcome of similar cases in the future.

Frederick said that his journey helped him “mature” and become more aware of his civic responsibilities.

“I was skeptical of my own free speech rights and I…wanted to know more precisely the boundaries of my freedom, and I guess we’ll get to find out that soon,” Frederick said.


reports, Spring 2007