U.S. Supreme Court's decision in Morse v. Frederick leaves narrow hole in landmark Tinker standard

A burst of laughter broke over the marble halls of the U.S. Supreme Court chamber when one of the nine dignified, black-robed figures seated behind a raised bench began to speak about “bong hits.”

While delivering the Morse v. Frederick ruling, witnesses said, Chief Justice of the United States John Roberts sarcastically described a comical banner reading “Bong Hits 4 Jesus” amid some chuckles from the crowd that had gathered to watch the final decision reading of the Court’s term.

Students and First Amendment advocates, however, were not laughing.

On June 25, nearly five years after a high school student in Juneau, Alaska, held up the now-famous banner across the street from his school during the 2002 Olympic Torch Relay, the Supreme Court ruled that his school had a right to discipline him for his actions. In a narrow ruling, the Court decided that schools do not violate a student’s First Amendment free-speech rights by punishing speech that advocates illegal drug use at a school-sanctioned and school-supervised activity.

While students and advocates bristled at this setback to students’ freedom of expression, school administrators maintained that the right side prevailed. These groups were not the only ones that disagreed on the outcome of the legal battle, as the Court itself exhibited more than one sharp ideological split in the decision.

Speculation among First Amendment advocates about the decision’s potential impact ranged from optimistic to deeply skeptical. Several advocates simply shrugged and resignedly said, “It could have been worse.”

The decision

Many legal experts said the outcome of Morse, although unfavorable to established First Amendment protections, carves out a narrow precedent that is unlikely to prove devastating for student-speech rights.

The controversy began in January 2002 when Joseph Frederick, then an 18-year-old senior at Juneau-Douglas High School, raised a 14-foot banner duct-taped with the words “Bong Hits 4 Jesus” to attract the television cameras parked on the street next to his school. Frederick unfurled the banner for a moment in the spotlight, but he probably did not realize how much attention his message would soon receive.

Although Frederick would later claim that the words on the banner were “absurdly funny” but nonsensical, Principal Deborah Morse thought they carried a pro-drug use message.

After spotting the display across the street, Morse grabbed the banner and suspended Frederick for 10 days. Frederick appealed to the Juneau School Board to end his punishment but lost.

The conflict gained momentum in April 2002 when Frederick, with help from the American Civil Liberties Union of Alaska, filed suit in a federal court alleging that his free-speech rights had been violated.

But the district court ruled that Morse and the school board did not infringe upon his rights, stating that the First Amendment does not protect Frederick’s message in this case because the banner “conflicted with the school’s deterrence of illegal drug use.”

Frederick appealed to the 9th U.S. Circuit Court of Appeals, which reversed the lower court’s ruling. The appeals court unanimously decided that the school violated Frederick’s free-speech rights because it failed to “show a reasonable concern about the likelihood of substantial disruption to its educational mission, applying the Supreme Court’s 1969 Tinker standard.

But the school board, displeased with this ruling, brought its complaint to the Supreme Court.

Oral arguments were heard in the high court March 19. By that time, the case had gained national fame and drawn the interest of former special prosecutor and dean of the Pepperdine University School of Law Kenneth Starr, who signed on to represent the school district pro bono.

An eclectic group of organizations, including the Student Press Law Center, ranging from the left-leaning Lambda Legal Defense and Education Fund to the conservative Alliance Defense Fund, filed friend-of-the-court briefs with the Supreme Court in support of Frederick. Groups such as the National School Boards Association and Drug Abuse Resistance Education filed for Morse.

The Supreme Court ended the lengthy legal battle in June by giving the school district and Starr the final victory.

“I’m glad that the Court recognized the need to have reasonable rules governing student speech for the good of all students,” Morse said in a conference call the day the Court ruled in her favor. “It’s been very challenging … both personally and professionally.”

The 18-page opinion of the court, written by Roberts, sympathizes with school officials and the “difficult” and “important” job they have in shielding students from drug advocacy. Drawing on an educator’s duty to deter drug use, the majority decision said it would give school officials legal cover to strike down student speech that can be “reasonably regarded as encouraging illegal drug use.” The majority found the school’s interpretation of Frederick’s banner as a pro-drug message to be reasonable.

The decision used the Court’s 1986 ruling in Bethel School District v. Fraser, in which it ruled that sexually suggestive speech delivered at a high school assembly is punishable, to argue that the 1969 Tinker v. Des Moines Independent Community School District decision, the standard-bearer for student speech, is “not absolute.”

Tinker restricted censorship by only permitting schools to suppress speech that causes a substantial disruption in the learning environment or infringes on the rights of others.

The Morse decision also states that although Frederick raised his “pro-drug” banner across the street from his school, he still can be disciplined because the environment surrounding the Olympic torch relay constituted a school-sanctioned and school-supervised event.

Many legal experts said the ruling’s impact on student speech, however damaging, is considerably tempered by a concurring opinion written by Associate Justice Samuel Alito and joined by Associate Justice Anthony Kennedy. In the weeks leading up to the decision reading, Alito publicly spoke on the importance of upholding the First Amendment and was expected by many to stand up for student free-speech rights in the impending decision.

Although his vote was not for Frederick, Alito’s concurrence warned school administrators about the limits of drug speech regulation. He wrote that he and Kennedy support the Court’s decision as long as it “goes no further” than to allow administrators to restrict expression advocating illegal drug use and does not permit administrators to restrict commentary on “any political or social issue.”

Alito said the Court will not uphold restrictions on student speech that references illegal drug use but does not promote the illegal activity, which he said includes student speech that examines “the wisdom of the war on drugs” or the issues concerned with “legalizing marijuana for medicinal use.”

In addition, to prevent administrators from using the ruling as a carte blanche to censor, Alito wrote that the Court does not endorse the argument brought by the school district and Starr that the First Amendment permits public school officials to censor student speech that interferes with a school’s “educational mission.”

James Tidwell, an Eastern Illinois University professor of journalism, said the Alito-Kennedy concurrence makes it clear that students will not entirely relinquish free-speech rights at school.

“This case has carved out a narrow, narrow exception for speech that advocates drug use,” he said.

Associate Justice Clarence Thomas also concurred but wrote a separate statement that called on the Court to put the kibosh on student-speech rights entirely. None of the other justices signed on with this stance.

The dissent

The breakdown of votes in the Supreme Court mirrored the bench’s ideological split, as the five conservative justices agreed with the school district and the four more left-leaning or moderate justices were sympathetic to Frederick’s argument.

Associate Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter dissented from the Court’s opinion and Associate Justice Stephen Breyer concurred in part and also gave a partial dissent.

Breyer said the Court simply should have decided that Frederick could not seek damages for his punishment, and it was “unwise and unnecessary” to pursue a First Amendment debate. He expressed concern that the decision would authorize further viewpoint-based restrictions on student speech, which he said could encourage school officials to prohibit speech that calls on the government to legalize marijuana.

“This Court need not and should not decide this difficult First Amendment issue on the merits,” Breyer wrote.

Stevens went much further to denounce the majority opinion.

Stevens, who reportedly shook his head disapprovingly as Roberts read the ruling, said in the dissent that the First Amendment supersedes any justification Morse can make for doling out punishments for a banner with an “oblique reference” to drugs.

“The First Amendment demands more, indeed, much more,” he wrote.

Drawing on Tinker, which stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Stevens argued that the decision misconstrues a precedent that would have upheld Frederick’s message.

SPLC Attorney Advocate Adam Goldstein said while Morse does little harm to the Tinker protections as a rule of law, the recent decision undercuts the authority of the older decision because it is the third exception the Court has made to the rule.

The other two exceptions came down in Fraser and in the 1988 Supreme Court decision Hazelwood School District v. Kuhlmeier, which permitted public high school officials to censor some school-sponsored student publications if the publications are not “public forums for student expression.”

Morse has now added illegal drug advocacy to the list of unprotected speech.

Goldstein and SPLC Executive Director Mark Goodman have expressed concern that Morse could lead to more erosion of the Tinker standard.

“If this path continues, eventually the exceptions will swallow the rule,” Goldstein said.

Watching from the sidelines

Stevens and the other dissenting justices were far from being the only people to speak against the ruling.

In the weeks following the decision announcement, a number of media outlets and non-profit groups, including the New York Times, —The Washington Post and the Journalism Education Association, released statements criticizing the Court for curtailing students’ First Amendment rights.

JEA, an organization of journalism teachers and advisers based at Kansas State University in Manhattan, Kan., held a meeting to discuss ways to counteract Morse’s impact on student press rights. The organization released a statement warning educators not to treat the decision as an invitation to restrict student expression that they think is controversial.

“This is one of the most frightening decisions ever to come down,” JEA Executive Director Linda Puntney said.

Puntney said because Frederick was not technically in school when he unfurled his banner, school administrators could misinterpret the ruling as permission to control content on students’ Web sites or other media.

Puntney, who serves as director of publications at Kansas State University and taught journalism in high school for 12 years, said she fears the decision will have a chilling effect on student journalists who should instead be encouraged to pursue robust discussion.

“Because of this, I think there will be students who develop a tendency to self-censor,” she said.

But others took a more optimistic view of the ruling.

Mathew Staver, the founder and chairman of the Liberty Counsel, which also filed a friend-of-the-court brief supporting Frederick, said his organization is satisfied with the outcome, despite being momentarily displeased with Frederick’s loss.

“We were concerned about this decision because it had the potential to undo free speech,” Staver said. “But it appears that the free-speech rights of students are still intact.”

Not all students will take a hit from the decision; a few states have student-expression laws that are far more protective than the federal standard. California’s statute on student expression, for instance, states, “Students of the public schools shall have the right to exercise freedom of speech and of the press.”

Some groups that supported Morse have criticized the Court for not going far enough to limit student speech on a national level.

Tom Hutton, the National School Boards Association senior attorney, said he was somewhat disappointed that the decision, like Fraser, has made only a single addition to the categories of speech that schools can regulate.

“This is a very ad hoc approach that doesn’t give anybody as much clarity and guidance as might be helpful to avoid future litigation,” he said. “We would have liked a little more discretion for school officials.”

The road ahead

Although it has been weeks since the chattering crowds descended the white steps of the Supreme Court building after the decision was announced, interest in the “Bong Hits 4 Jesus” case has not died down.

Legal scholars and advocacy groups have turned their eyes to the places in which the ruling will take its toll — the schools.

Mary Becker, the president of Juneau School Board, said she is pleased that the Supreme Court upheld school policy on drug promotion.

“We won’t have principals and administrators worrying any longer that they cannot prohibit those kinds of advocacy by students,” she said. “I’m pleased that [the Supreme Court] agreed that we were just defending our policy.”

Becker said she has no plans to revise school policy on speech or publications because it is already “strong” and has been “strengthened” by the Morse decision.

Few schools, for now, have said they will revise school policy on speech and publications to reflect their new authority to regulate pro-drug speech, though some experts said more are likely to revisit student expression policy once school begins this fall.

Hutton said he thinks most schools will probably refer to Morse when a confrontation involving drug speech crops up, but they are far less likely to take a proactive approach to restricting student expression.

Some raised concerns that the ruling, despite Alito’s concurrence, will lead school officials to censor speech that delivers an anti-drug message or makes a controversial political statement. A number of pending court cases, including a conflict involving a high school student from New York who attached a piece of paper to his shirt with the message “Abortion is Murder,” may be affected by the Morse rationale.

But the high court’s refusal to hear another case may indicate that it does not intend the decision to be interpreted so broadly.

Days after the Morse decision, the Court denied a Vermont school district’s petition for a writ of certiorari to hear a case involving a student who was punished for wearing a T-shirt depicting President Bush with images of illegal drugs and alcohol.

Zach Guiles, a former student at Williamstown Middle High School in Williamstown, Vt., was suspended in May 2004 when he wore a shirt that called President Bush “Chicken-Hawk-in-Chief” and illustrated him as a chicken surrounded by cocaine and a martini glass. In retaliation, Guiles arrived at school in the following few days wearing the same shirt covered with duct tape bearing the word “censored.”

Although a district court said the school could legally censor some of the images on the shirt, the 2nd U.S. Circuit Court of Appeals decided that the school’s actions violated Guiles’s First Amendment rights. The school petitioned the Supreme Court in February to hear its case.

Legal experts said the Court probably denied the writ of certiorari because the student’s message in his case was a political statement, and thus protected by the First Amendment, according to Morse.

Clay Calvert, a Pennsylvania State University professor of journalism who attended the oral arguments for Morse, said the Court has indicated that it reached the recent decision only by drawing a distinction between pro-drug speech and political speech about drugs.

“The good news is that the Court did not adopt Justice Thomas’ line of reasoning in which he would have completely stripped students of free speech rights altogether,” he said. “It’s bad news, but it could have been worse news.”

Yet, Calvert said he would still be curious to see how lower courts use the Morse ruling to decide cases involving speech or published material about legalizing marijuana, a question that Justices Breyer and Stevens said in their respective opinions Morse has precariously left open for debate.

“It’ll be interesting to see if students test this by making drug-based speech that is clearly political,” Calvert said.

For now, students across the nation are still faced with what may prove a perplexing task of deciding what kinds of speech are acceptable in their schools and what kinds of speech may land them in the principal’s office, where the law may not be able to help.

Mary Beth Tinker, whose lawsuit established protections for student expression in 1969, said the ruling leaves too much up to administrators.

“To censor student speech that is against school policy is opening the door to a wide range of issues that schools can censor,” she said. “So much is just left up to interpretation.”

Hareesh Ganesan, 16, an editor in chief of Silver Chips, a student newspaper from Montgomery Blair High School in Silver Spring, Md., said his newspaper has run several stories about drugs in the past without any problems, but he said he fears that the recent ruling may give the administration more self-assurance to misconstrue these pieces as pro-drug speech.

“If the school decides to interpret them as advocating or glorifying drug use, then [Morse] would really hurt us in that situation,” he said.

Ganesan said because many school administrators may miss the nuances in the new standard and decide that it gives them free reign to censor, it will be important for students to educate themselves about the “Bong Hits 4 Jesus” case and learn how it affects their right to free speech.

“Hopefully, they’ll come to understand what this entails for them,” he said.