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Twenty-three organizations file briefs with Supreme Court in 'Bong Hits 4 Jesus' case
Oral arguments to be heard March 19 in student free expression case
March 9, 2007
Joseph Frederick, then 18 years old, held up the sign
across the street from Juneau-Douglas High School as the 2002 Winter Olympics
torch relay passed by. High School Principal Deborah Morse crossed the street
and took the banner from Frederick, giving him a 10-day
suspension.
Frederick filed suit, but a federal district court ruled in
favor of the school, stating that his First Amendment rights were not violated
because the event was considered school-sponsored, and the school had the right
to punish him for his violation of the district's drug policy.
Frederick
appealed to the Ninth U.S. Circuit Court of Appeals, which reversed the decision
in March 2006, stating that the event was not school-sponsored and that
independent student speech was governed by the 1969 U.S. Supreme Court decision
in Tinker v. Des Moines Independent Community School District. The
Tinker decision states that school officials cannot punish or prohibit
student expression without evidence of material and substantial disruption of
school activities or invasion of others' rights. The school did not argue that
Frederick's speech was disruptive.
The Supreme Court agreed in December
to hear the school district's appeal in Morse v. Frederick.
Seven
friend-of-the-court, or amicus curiae, briefs were filed in
support of Frederick's claim by conservative, religious liberties groups
including the Alliance
Defense Fund, the American Center for Law and
Justice, the Center for Individual
Rights, the Christian Legal
Society, the Liberty
Counsel, the Liberty Legal
Institute and the Rutherford
Institute.
On the other side of the political spectrum, briefs
supporting Frederick's claim were also field by the Drug Policy Alliance,
Lambda Legal
Defense and Education Fund, the National
Coalition Against Censorship and Students for Sensible
Drug Policy.
The Student Press Law Center filed a brief in support of
Frederick's claim on behalf of five First Amendment organizations.
Despite the opinion clash between the organizations from a political
perspective, Lead Counsel Jordan Lorence of the Alliance Defense Fund, a
conservative, religious freedom advocacy organization, is finding that they all
seek to protect student expression and First Amendment rights.
"What it
shows is that this group [that filed briefs], from a wide ideological spectrum,
all share this situation where they have represented and advocated for students
expressing controversial ideas in a school setting," Lorence said. "From
thinking 'homosexuality is shameful' to 'homosexuality is great,' " the all
groups believe the First Amendment would become "meaningless" if full power was
given to the school officials, he said.
Legal Director 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, transgendered people
and those with HIV, said that organizations with opposing views "have been on
the same side before." Religious and gay/straight alliance groups fighting to
establish clubs on college campuses is one example of where expression cases can
make for "strange bedfellows," he said.
"It's not about a particular
position; it's about the right to express the side of any position," Davidson
said.
The majority of the briefs argue that Frederick's First Amendment
rights were violated because he was not on school grounds and was not attending
a school-sponsored event.
Founder and Chairman Mathew Staver of the Liberty
Counsel, a legal organization that advocates religious freedom and family
tradition, said that the district's reason for appeal "doesn't match the
facts."
"[The argument] assumes that this is a school-sponsored
activity," Staver said. "I don't see any reason in why they would take an
interest in [Frederick's independent expression]."
Chief Counsel Jay
Sekulow of the American Center for Law and Justice, a constitutional law office
that focuses on protecting religious and natural rights, also filed a brief on
behalf of Frederick, stating the case is important because it could affect
future free expression litigation.
"[Frederick] was not serious about the
message he was conveying," Sekulow said. "He was basically fooling around to get
the TV cameras on him. We have to make sure they don't decide it for the wrong
reason, to hurt people who do have serious messages."
The National School Boards
Association, an organization of school boards across the country, U.S. Solicitor General Paul
Clement and DARE America, an
organization advocating drug education, were among those who filed amicus
briefs last month in support of the school district.
These organizations
argue that schools officials have the right to keep the school environment safe
and should be permitted to "regulate student speech that undermines their core
educational mission or interferes with maintaining a safe and effective learning
environment," according to the NSBA brief.
The NSBA also said in
its brief that Morse's actions are not only supported by previous Supreme Court
decisions, but "low value speech is not worthy of First Amendment protection,
and the lower value of the speech, the more discretion school officials must be
afforded."
DARE America highlighted the "enormous" problem of teenage
drug abuse in its brief and advocates against the Ninth Circuit's ruling that it
says "seriously, and erroneously, undermines our schools' ability to carry out
vital anti-drug polices."
"The Ninth Circuit's condemnation of Principal
Morse's actions under these circumstances demonstrates that the court has
adopted a completely unworkable standard of conduct for school officials charged
with responding to potentially disruptive student speech," according to the DARE
brief.
Oral arguments before the Supreme Court are scheduled for March
19.
Organizations filing amicus briefs in favor of Frederick's
claim are: the Alliance Defense
Fund, the American Booksellers
Foundation for Free Expression, the American Center for Law and Justice, the
Christian Legal Society, the Drug Policy Alliance, the Lambda Legal Defense and Education Fund,
Inc., Liberty Counsel, the Liberty Legal Institute, The First Amendment Project,
Feminists for Free Expression, The Freedom to Read Foundation, the
National Coalition Against Censorship,
The Rutherford Institute, the
Student Press Law Center, Students for Sensible Drug Policy and The Thomas Jefferson Center for the Protection
of Free Expression.
Organizations and individuals filing in
support of the school district's claim are: the American Association of School
Administrators, DARE America,
Drug Free America Foundation, Inc.,
General Barry R. McCaffrey, Hon. William J. Bennett, the National Association of Secondary School
Principals, National
Families in Action, the National
School Boards Association, Save Our Society from
Drugs and Solicitor General Paul
Clement.
By Erica Hudock, SPLC staff writer
© 2007 Student Press Law Center
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For More Information: Frederick v. Morse, 439 F.3d 114 (2006), cert. granted, 2006 WL 2503545, No. 06-278 (Dec. 1, 2006).
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