Summary of Opinions in Morse v. Frederick ("Bong Hits for Jesus")

The following summary of the Supreme Court's opinions in Morse v. Frederick was prepared by Julie Baworowsky, a Blackstone intern spending her summer here at CLRF.

Morse v. Frederick, No. 06-278, (U.S. June 25, 2007).
Procedural History: The Ninth Circuit had held that a school principal violated the First Amendment when she suspended a student for a banner reading “Bong Hits for Jesus” and displayed by him across the street from the school during a parade passing the school grounds. The Ninth Circuit also held that the principal could not assert qualified immunity from personal liability for her actions. The Principal and School Board argued in the Supreme Court that school officials must have the authority to censor student speech that is deemed “inconsistent with the school’s educational mission.” Organizations across the ideological spectrum, including the Christian Legal Society, filed amicus briefs in support of the student and warning that such a broad assertion of school authority could be and often is used to justify censorship of student religious speech in schools.

The Supreme Court reversed. Justice Roberts’s majority opinion, in which Justices Scalia, Kennedy, Thomas, and Alito joined, held that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use and hence the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. The opinion holds:
(1) That adjudicating this case on grounds of qualified immunity alone is inadequate because it would only resolve the damages question, leaving injunctive relief unaddressed.
(2) That this case is to be analyzed as a student free speech case, since Frederick was among peers at a school-approved event during school hours near school with a message visible to students.
(3) Principal Morse’s reading of the banner as either an encouragement or an imperative to illegal drug use is one reasonable interpretation for students, teachers, and others. Additionally, although it does not express a political or religious message, the banner’s reference to illegal drugs prevents judges from treating it as gibberish.
(4) It reaffirmed Fraser’s holding that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings” and Tinker’s permission to circumscribe the rights “in light of the special characteristics of the school environment.” Morse v. Frederick, No. 06-278, slip op. at 11 (U.S. June 25, 2007)
(5) Tinker and Fraser do not provide the framework for analyzing every student speech case. It refused to categorize Frederick’s banner as either disruptive under Tinker or “offensive” under Fraser.
(6) The court stresses the danger of student drug use and the “important- indeed, perhaps compelling” interest of the state schools, in a tutelary capacity, to deter drug use. Id. at 12.
(7) The special characteristics of school and the important deterrence interest allow schools to restrict student expression that are reasonably viewed as promoting drug abuse.
(8) The court characterizes consensus between the majority and dissent: (a) on the permissibility of targeted viewpoint discrimination, (b) that schools do not need to tolerate advocacy of drug use, when that speech falls short of inviting imminent lawless action, (c) that the principal should enjoy qualified immunity for her actions. It describes the real dispute as “less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does.” Id. at 15.

Justice Alito’s concurrence, in which Justice Kennedy joined, supports the majority “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Alito, J. concurring) (citation omitted). The opinion states:
(1) the Court correctly reaffirms Tinker and notes it is not the only grounds on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings. Id. at 1-2. “But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court…I join in the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions. Id. at 2.
(2) The court does not agree with, and Alito would reject, that schools may censor any student speech interfering with its “educational mission” due to wide abuse of the definition of that mission as “the inculcation of whatever political and social views are held by” school rule-makers.
(3) Alito rejects the dangerous fiction that the state agents in schools may stand in the shoes of parents to strip them of their limits as state actors, especially since few parents realistically have a choice about public education. “Any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.” Id. at 3.
“The special characteristic that is relevant in this case is the threat to the physical safety of students.” School officials must have greater authority to intervene before speech leads to violence, as when Tinker’s substantial disruption standard. The grave and unique threat of illegal drug use to physical safety allows “regulation standing at the far reaches of what the First Amendment permits.” Id. at 4. Because Justice Alito’s concurrence is narrower than that of Justice Roberts’ opinion and qualifies the votes of Justice Alito and Kennedy that provided the majority, Justice Alito’s opinion should be considered the controlling opinion in the case.

Justice Thomas concurred in order to state his view that Tinker was wrongly decided:
(1) The First Amendment as originally understood does not protect student speech in schools, and so Tinker’s standard is without basis in the Constitution.
(2) The practices of “iron hand” private tutors, operating under the doctrine of in loco parentis, to restrict speech in order to instill “a core of common values” and self-control were adopted wholesale by 19th Century public schools. Broad local and democratic latitude existed to allow teachers to punish speech contrary to the school and its educational goals, subject to limitation on excessive physical punishment. Morse v. Frederick, No. 06-278, at 2 (U.S. June 25, 2007) (Thomas, J. concurring).
(3) Tinker surrendered control of schools to students, resulting in confused and vague case law stating that “students have a right to speak in schools except when they don’t- a standard continuously developed through litigation against local schools and their administrators.” Id. at 9-10.
(4) Those who do not wish to be under school rules should seek redress legislatively or through nonpublic education; voluntary enrollment in public education means they must follow the school rules.

Justice Breyer’s opinion concurring in judgment but disagreeing in the reasoning, would hold instead “that qualified immunity bars the student’s claim for monetary damages and say no more.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Breyer, J. concurring in judgment and dissenting in part).
(1) Serious concerns about the extension of a holding permitting viewpoint discrimination, why drug use is so differently a justification for regulation, right means to avoid significant interference with school discipline, judicial unanimity, and judicial restraint, are reasons not to decide the issue unless the Court must.
(2) There is serious dispute over the law in this case.
(3) The Saucier v. Katz “order of battle” rule that the right must be examined before qualified immunity should be set aside. Id. at 6.
(4) The remaining issue of injunctive relief (to expunge his punishment from school records) may be dealt with as unnecessary, since his punishment may be justified on other grounds upon remand to a lower court.

Justice Stevens dissent, joined by Justices Souter and Ginsburg, argues that the principal should not be held liable but that the ambiguous reference to drugs on the banner cannot be censored because of “the school’s interest in protecting its students from exposure to speech reasonably regarded as promoting illegal drug use.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Stevens, J. dissenting).
(1) The limits on the school’s assertion of such compelling interests and deference to the “reasonable” interpretations of listeners are unclear.
(2) Since case law favors protecting speech short of actual harm, in this setting the dissent would employ some relaxed imminence requirement, to protect student speech unless it “expressly advocates conduct that is illegal and harmful to students.” Id.
(3) The majority permits punishment based upon a listener’s disagreement with or misunderstanding of a viewpoint and invites “stark viewpoint discrimination,” id. at 2, instead of “some targeted viewpoint discrimination.”
(4) The dissent would require a judicial determination of Frederick’s message. The majority’s characterization of it as drug advocacy, through deference to a listener’s interpretation of the speech, ignores a judge’s duty to objectively analyze speech for its most reasonable interpretation. “[I]t would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct…yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.” Id. at 9.
(5) Frederick’s speech is better categorized as “never meant to persuade anyone to do anything” and therefore, not to be regulated for drug deterrence.
(6) Students are likely now to avoid any mention of illegal activity, since anyone may “reasonably” perceive it as drug advocacy.
(7) If this is a close case, the tie should go to the speaker, not the school.
(8) Justice Stevens personally reminisces about the Vietnam War protests and Prohibition-era disagreement as analogies in favor of open discussion, suggesting that perhaps one day illegal drugs will be legalized.