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Supreme Court rules in 'Bong Hits 4 Jesus' case
Decision says school administrators can prohibit speech advocating illegal drugs
June 25, 2007
The Court reversed
the Ninth U.S. Circuit Court of Appeals decision in Morse v. Frederick by
deciding that Joseph Frederick, a former student at Juneau-Douglas High School,
was not protected by the First Amendment when he held up a banner with the words
“Bong Hits 4 Jesus” across the street from his school during a 2002
Olympic Torch Relay. The decision, written by Chief Justice John Roberts of the
United States, states the ruling was made in favor of Principal Deborah Morse
and the school because the banner could be interpreted as a pro-illegal drug-use
message at a school-sanctioned activity.
Justices Antonin Scalia,
Anthony Kennedy, Clarence Thomas and Samuel Alito concurred with the Roberts
opinion while Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter
dissented. Justice Stephen Breyer concurred in part and gave a partial dissent
to the opinion.
The Ninth U.S. Circuit Court of Appeals previously ruled
in favor of Frederick, using the 1969 U.S. Supreme Court decision in Tinker
v. Des Moines Independent Community School District, and finding that
Morse’s actions are unconstitutional because the banner did not
“materially or substantially disrupt the work and discipline of the
school.”
But the Supreme Court’s decision cites the
Court’s 1986 Bethel School District v. Fraser decision — a
case involving sexually suggestive speech delivered at a high school assembly
— to justify its decision in Morse, stating that students in public
schools do not have the same constitutional rights as adults and arguing that
the standard set by Tinker is not absolute.
The Court agreed with
Morse that the 14-foot banner could be read as a promotion of drug use, deciding
that the “Bong Hits” message could be interpreted as either
encouraging viewers to smoke marijuana or celebrating of drug use. The Court
also agreed that the speech took place at a school-sponsored event, although the
banner was held up off campus on a public street.
“Because schools
may take steps to safeguard those entrusted to their care from speech that can
be reasonably regarded as encouraging illegal drug use, the school officials
in this case did not violate the First Amendment by confiscating the pro-drug
banner and suspending Frederick,” the decision reads.
Stevens, who
wrote the dissents and was joined by Ginsburg and Souter, wrote that the First
Amendment should not be curtailed by a “nonsense banner” containing
“an oblique reference to drugs.”
“[I]t is one thing to
restrict speech that advocates drug use,” Stevens wrote. “It is
another thing entirely to prohibit an obscure message with a drug theme that a
third party subjectively — and not very reasonably — thinks is
tantamount to express advocacy.”
Breyer in his partial dissent
stated that the Court should have only held that Frederick cannot seek monetary
damages for being disciplined and that attempting to resolve the First Amendment
question is “unwise and unnecessary.
Jason Brandeis, staff attorney
for the Alaska ACLU and co-counsel for Frederick said he is concerned that the
decision will set a dangerous precedent for censorship of speech that does not
create a disruption of the educational environment.
“This decision
seems to create a drug exception to First Amendment with respect to student
speech without any real justification about why the student free speech can be
censored,” he said.
Mark Goodman, executive director of the
Student Press Law Center, said although he is disappointed in the decision, he
sees it as a narrow ruling that only allows school officials to limit student
speech that promotes illegal drug use and not speech relating to discussion of
political and social issues.
“It’s disappointing that the
Court once again felt the need to diminish student First Amendment protection at
a time when teenagers’ understanding and appreciation for the First
Amendment is so incredibly low,” he said. “The last thing the
country needs is a court ruling that further diminishes its relevance to their
lives.”
Frederick, then an 18-year-old senior at Juneau-Douglas
High School, said he had his banner confiscated and was suspended 10 days — five
days for displaying the banner and five days for refusing to divulge the names
of the other participants and quoting Thomas Jefferson: “Speech limited is
speech lost.”
Frederick, who later said he deliberately
unfurled the banner to test “the limits” of his free speech, filed a
lawsuit against Morse and the Juneau School Board in a federal district court
after losing appeals to the superintendent and board. The court ruled in favor
of the school, but Frederick took his case to the Ninth U.S. Circuit Court of
Appeals, which unanimously reversed the lower court’s ruling by deciding
that “[n]o educational function was disrupted” by the banner and that
the school had violated the First Amendment.
The school board asked the
Supreme Court to review the case, and the Court heard oral arguments March
19.
A number of diverse organizations, ranging from the traditionally
conservative Alliance Defense Fund to the Drug Policy Alliance filed amicus
briefs to the court in support of Frederick. Many groups, including the National
School Boards Association and Drug Abuse Resistance Education, filed for
Morse.
Frederick, who recently returned from studying in China, could not
be reached for comment.
By Judy Wang, SPLC staff writer
© 2007 Student Press Law Center
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For More Information: Morse v. Frederick, No. 06-278 (U.S. June 25, 2007).
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