WASHINGTON, D.C. — A politically diverse group of 23 organizations filed friend-of-the-court briefs with the U.S. Supreme Court in anticipation of the March 19 hearing in a case of an Alaska high school student who was suspended for holding up a sign just off school property that read “Bong Hits 4 Jesus.”
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
Frederick v. Morse, 439 F.3d 114 (2006), cert. granted, 2006 WL 2503545, No. 06-278 (Dec. 1, 2006).