The Supreme Court ruled against a former high school student Monday in the “Bong Hits 4 Jesus” banner case — a split decision that limits students’ free speech rights. Joseph Frederick was 18 when he unveiled the 14-foot paper sign on a public sidewalk outside his Juneau, Alaska, high school in 2002. Principal Deborah Morse confiscated it and suspended Frederick. He sued, taking his case all the way to the nation’s highest court. The justices ruled that Frederick’s free speech rights were not violated by his suspension over what the majority’s written opinion called a “sophomoric” banner.”It was reasonable for (the principal) to conclude that the banner promoted illegal drug use– and that failing to act would send a powerful message to the students in her charge,” Chief Justice John Roberts wrote for the court’s 6-3 majority. Breyer noted separately he would give Morse qualified immunity from the lawsuit, but did not sign onto the majority’s broader free speech limits on students.
Roberts added that while the court has limited student free speech rights in the past, young people do not give up all their First Amendment rights when they enter a school. Roberts was supported by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer, and Samuel Alito. Breyer noted separately he would give Morse qualified immunity from the lawsuit, but did not sign onto the majority’s broader free speech limits on students. In dissent, Justice John Paul Stevens said, “This case began with a silly nonsensical banner, (and) ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message.”
He was backed by Justices David Souter and Ruth Bader Ginsburg. At issue was the discretion schools should be allowed to limit messages that appear to advocate illegal drug use. “Bong,” as noted in the appeal filed with the justices, “is a slang term for drug paraphernalia.” The incident occurred in January 2002 just outside school grounds when the Olympic torch relay was moving through the Alaska capital on its way to the Salt Lake City, Utah, Winter Games. Though he was standing on a public sidewalk, the school argued Frederick was part of a school-sanctioned event, because students were let out of classes and accompanied by their teachers.
Morse ordered the senior to take down the sign, but he refused. That led to a 10-day suspension for violating a school policy on promoting illegal drug use. Frederick filed suit, saying his First Amendment rights were infringed. A federal appeals court in San Francisco agreed, concluding the school could not show Frederick had disrupted the school’s educational mission by showing a banner off campus. Former independent counsel Kenneth Starr argued for the principal that a school “must be able to fashion its educational mission” without undue hindsight from the courts. http://articles.cnn.com/2007-06-25/justice/free.speech_1_principal-deborah-morse-banner-case-school-policy/2?_s=PM:LAW
WASHINGTON – The American Civil Liberties Union today criticized the Supreme Court’s 5-4 ruling in Morse v. Frederick, which held that Alaska public school officials did not violate a student’s free speech rights by punishing him for displaying a banner during a public event. “We are disappointed by the Supreme Court’s ruling, which allows the censorship of student speech without any evidence that school activities were disrupted,” said Douglas K. Mertz, an ACLU cooperating attorney who argued the case before the Supreme Court. The case arose in 2002 when Joseph Frederick, then a student at Juneau-Douglas High School in Juneau, Alaska, was suspended for 10 days for holding up a humorous sign that the principal interpreted as a pro-drug message. As the ACLU and Mertz noted, the sign caused no disruption, was displayed at the Olympic Torch Relay – a public event on public streets – and Frederick had not yet arrived at school for the day.
“The Court’s ruling imposes new restrictions on student speech rights and creates a drug exception to the First Amendment,” said Steven R. Shapiro, ACLU National Legal Director. “The decision purports to be narrow, and the Court rejected the most sweeping arguments for school censorship. But because the decision is based on the Court’s view about the value of speech concerning drugs, it is difficult to know what its impact will be in other cases involving unpopular speech. “The Court cannot have it both ways,” Shapiro added. “Either this speech had nothing to do with drugs, which is what Joe Frederick claimed all along, or it was suppressed because school officials disagreed with the viewpoint it expressed on an issue that is very much the subject of debate in Alaska and around the country.”
Frederick said that the phrase on the banner, Bong Hits 4 Jesus, “was never meant to have any substantive meaning. It was certainly not intended as a drug or religious message. I conveyed this to the principal by explaining it was intended to be funny, subjectively interpreted by the reader and most importantly an exercise of my inalienable right to free speech.” The ACLU noted that the ruling is limited to rights under federal law rather than Alaska state law, which is more protective of personal liberties. “The fight to defend free speech will go on, both in this case and in others,” Mertz said. “We are grateful for the many Alaskans and Americans who rallied to defend the First Amendment and promise our continued support for civil liberties.”
The case attracted support from more than a dozen groups across the ideological spectrum, from the conservative American Center for Law and Justice, Christian Legal Society and Rutherford Institute to the Student Press Law Center, Lambda Legal Defense and Education Fund, Drug Policy Alliance and National Coalition Against Censorship. More information on the case is online at: www.aclu.org/frederick The decision is online at: www.scotusblog.com/movabletype/archives/06-278_All.pdf In addition to Mertz and Shapiro, attorneys for Frederick are Catherine Crump and Jonathan Miller of the national ACLU and Jason Brandeis, Legal Director of the ACLU of Alaska. http://www.law.cornell.edu/supct/html/06-278.ZS.html
At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event—respondent Frederick—refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy. Petitioner school board also upheld the suspension. Frederick filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights.
The District Court granted petitioners summary judgment, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s speech rights. The Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, the court nonetheless found a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial disruption. It also concluded that Morse was not entitled to qualified immunity because Frederick’s right to display the banner was so clearly established that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional.
Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be 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. Pp. 5–15. (a) Frederick’s argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students.
Under these circumstances, Frederick cannot claim he was not at school. Pp. 5–6. (b) The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner’s words—that they constitute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use—demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. Pp. 6–8. (c) A principal may, consistent with the First Amendment , restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.
In Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment , id., at 504, that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school,” id., at 513. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 , however, upheld the suspension of a student who delivered a high school assembly speech employing “an elaborate, graphic, and explicit sexual metaphor,” id., at 678. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. 478 U. S., at 679–680. This Court reversed, holding that the school was “within its permissible authority in imposing sanctions … in response to [the student’s] offensively lewd and indecent speech.” Id., at 685.
Two basic principles may be distilled from Fraser. First, it demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. See, id., at 682–683. In school, however, his First Amendment rights were circumscribed “in light of the special characteristics of the school environment.”
Tinker, supra, at 506. Second, Fraser established that Tinker’s mode of analysis is not absolute, since the Fraser Court did not conduct the “substantial disruption” analysis. Subsequently, the Court has held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights … at the schoolhouse gate,’ … the nature of those rights is what is appropriate for children in school,” Vernonia School Dist. 47J v. Acton, 515 U. S. 646 , and has recognized that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest, id., at 661. Drug abuse by the Nation’s youth is a serious problem.
For example, Congress has declared that part of a school’s job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The “special characteristics of the school environment,” Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Id., at 508, 509, distinguished. Pp. 8–15.
http://web.law.duke.edu/publiclaw/supremecourtonline/certgrants/2006/morvfre.html Frederick sued Morse, the principal of his high school, under 42 U.S.C. § 1983, alleging that his First Amendment rights had been violated when Morse suspended him for ten days after he unfurled a banner with the message “Bong hits 4 Jesus” during a televised parade. The parade took place during the school day; students had been released from school to watch the parade; faculty were present and loosely supervising the event. Frederick was standing across the street from the school when he displayed the banner. Frederick unsuccessfully appealed his suspension administratively before filing his civil rights claim in district court. The district court ruled in favor of the principal.
The Ninth Circuit Court of Appeals reversed, holding that the case was governed by Tinker v. Des Moines Independent Community School District, in which the Supreme Court held that school authorities may only suppress the speech of students at school if the authorities can reasonably predict “substantial disruption of or material interference with school activities” as a result of the speech. Noting that Morse could not have been concerned about the disruption of educational activities resulting from Frederick’s speech, the Ninth Circuit reasoned that Morse could not punish Frederick’s non-disruptive, off-campus speech, even though he was a student, the speech took place during a school-authorized activity, and the speech promoted a social message contrary to the one favored by the school.
Finally, the Ninth Circuit held that Morse was not entitled to “qualified immunity” from money damages, because her conduct violated Frederick’s constitutional rights, the right was “clearly established” under the law, and it would be clear to a reasonable principal that her conduct was unlawful in the situation [she] confronted.
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