Justices may take centrist view of 'Bong Hits' By Tony Mauro First Amendment Center legal correspondent 03.20.07 WASHINGTON — With Mary Beth Tinker watching from the audience, the Supreme Court debated yesterday whether to narrow the Tinker precedent she generated, by giving public school officials new power to censor drug-related student speech. The justices heard arguments in Morse v. Frederick, in which Juneau, Alaska, high school Principal Deborah Morse suspended student Joseph Frederick for unfurling a banner with the message “BONG HITS 4 JESUS” outside the school. Frederick says the sign was nonsensical, meant as a First Amendment experiment, but principal Morse interpreted it as a pro-drug message that undermined the school’s campaign against illegal drug use. The 9th U.S. Circuit Court of Appeals, invoking the 1969 Tinker v. Des Moines decision, ruled for the student, declaring that a school district was “not entitled to suppress speech that undermines whatever mission it defines for itself.” Under Tinker, student speech is protected unless it is disruptive or invades the rights of other students. By the end of yesterday's hourlong argument before the Supreme Court, two things seemed clear on both ends of the spectrum of possible outcomes. First, the Court balked at giving schools a broad charter to censor any speech that merely falls outside the school’s educational mission. But second, the Court also seemed resolved that Principal Morse — and school officials like her in the future — should not be held personally liable for misinterpreting the welter of nuanced and conflicting Court precedents on student free speech. Somewhere in the middle is where the Court will likely rule, with a nod toward both student speech and the need for school discipline. And the push toward center ground may come from the Court’s newest justice, Samuel Alito Jr., who in a series of questions made clear his concern about giving school officials too much power to restrict student speech. If student speech can be censored for the sole reason that it is contrary to a school’s educational mission, Alito said, schools can simply expand their mission statements to justify censoring any speech they don’t like. “They can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions,” Alito said. Alito’s stance seemed to echo a ruling he wrote in 2001 as a judge on the 3rd U.S. Circuit Court of Appeals. In Saxe v. State College, Alito struck down a college speech code that banned verbal harassment, defined to include negative speech about “religious traditions,” values and race. “Such speech, when it does not pose a realistic threat of substantial disruption, is within a student's First Amendment rights,” Alito said in Saxe. Alito’s mention yesterday of fundamental values may also have been a nod to the arguments that Christian legal organizations have made, perhaps unexpectedly, in support of Frederick’s right to display the bong banner. In their legal battle to allow more religious expression in public schools, Christian groups have relied successfully on free-speech precedents. As a result, the American Center for Law and Justice and the Alliance Defense Fund, two of the leading Christian legal advocacy groups, are worried that if the Court sides with the Juneau principal and narrows Tinker, religious expression will also be vulnerable. “Like the speech at issue in this case, religious speech can be controversial,” the Alliance Defense Fund told the Court in a brief. “As such it is often the target of censorship in our nation’s public schools.” In part because of Alito’s comments and the general skepticism the Court showed toward a broad anti-speech decision, former solicitor general Kenneth Starr, the lawyer for principal Morse, urged a narrower position. “This case is ultimately about drugs and other illegal substances,” Starr insisted, pointing toward what might amount to a drug-war exception to the First Amendment for students. School officials, Starr argued, should be given special deference in the area of drugs to move against pro-drug speech — even messages like Frederick’s banner, which are open to varying interpretations. Deputy Solicitor General Edwin Kneedler, also arguing on the principal’s side, suggested a broader mandate for school officials to censor student speech advocating illegal conduct in general. Starr and Kneedler almost certainly won over Chief Justice John Roberts Jr., who asked incredulously, “Can’t the school decide that it’s part of its mission to try to prevent its students from engaging in drug use?” At times, Roberts seemed ready to give even more power to school officials outside the area of drugs than Starr and Kneedler were asking for. More than once, Roberts sarcastically said that teachers, not students, are the ones who should set a school’s agenda. Considerable argument time was spent mulling over disputed facts of the case, which could lead to another possible resolution: remanding the case to lower courts for further fact-finding. Several justices wondered why Morse viewed the banner as a pro-drug message at all. And it was noted that Frederick displayed the banner not on school property but across the street from the school. The incident occurred in January 2002 when the Olympic torch passed through Juneau, and students from Juneau-Douglas High School were let out of school to watch. Cheerleaders and the school band greeted the procession. When the torchbearers approached and TV cameras went on, Frederick, who intentionally avoided school property, unfurled the 14-foot banner. Justices also weighed the significance of the fact that Frederick had not been in school that day, but went directly from his home to the gathering outside school. That, said his lawyer, Douglas Mertz, helps convert the case into one involving public speech, not student speech, at a public event, since Frederick was not at the event in his capacity as a student. “If he had gone on his own time to the zoo and was engaging in some expressive act, and there happened to be a school group there at the same time, could the teacher with that group then have disciplined him for what he was doing?” asked Mertz rhetorically. Several justices dismissed that argument, suggesting that Frederick’s truancy should not be rewarded by giving him more First Amendment protection than he would have had if he had gone to school that day. Justice David Souter seemed to be the most sympathetic toward student expression during the arguments, repeatedly asking Starr what was disruptive about the banner, especially in an off-campus, non-classroom setting. “What did it disrupt on the sidewalk?” Justice Anthony Kennedy, like Alito, worried aloud about giving too much power to school officials. “Suppose you have a mission to have a global school. Can they ban American flags on lapels?” But Kennedy also seemed to conclude that Frederick’s conduct had in fact been disruptive; such a judgment would place it in the category of speech that can be restricted even under Tinker. “It was completely disruptive of the message, of the theme that the school wanted to promote. Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school's image that they wanted to portray in sponsoring the Olympics,” Kennedy said. Mertz held his own, insisting: “What it was was a person displaying this banner in a quiet, passive manner that didn’t interfere with anybody’s observation.” At another point Mertz said, “This is a case about free speech. It is not a case about drugs.” But then Roberts interjected, “It’s a case about money. Your client wants money from the principal personally.” Frederick is in fact seeking monetary damages for the constitutional violation, but “that’s by no means his object here,” Mertz said. Other justices also seemed to sympathize with the principal on the issue of liability. Because Frederick sued her for violating his constitutional rights, she could be liable for money damages, unless she is deemed to have some level of immunity from suit. Part of that calculation involves determining whether she should have known under the law and court precedents that her action in suspending Frederick violated his free-speech rights. Acknowledging the complexity of the precedents in this area, most justices — including Souter — seemed eager to give Morse and other school officials in similar circumstances a break. “We've been debating this in this courtroom for going on an hour, and it seems to me however you come out, there is reasonable debate,” said Souter at one point. “Should the teacher have known, even in the calm, deliberative atmosphere of the school later, what the correct answer is?” Frederick, now working as a high school English teacher on mainland China, did not attend the arguments.
I can't think of many things that Bush has done particularly well, but appointing Sam Alito was a homerun.
My sister was the original lawyer advising the school district on this case and was at the Supreme Court hearing. She said many of the facts reported in the media on the case have been really inaccurate. Because this occurred at what was essentially a school function, I come down on the side of the principal's right to discipline the student for displaying the sign.
It happened off campus. It was at an event unrelated to the school itself. The child in question never even brought the banner to school, he brought it straight from his home to the event. School officials should not have taken any disciplinary action, whether the sign was about drugs, Bush, religion, or anything else.
Its an interesting case. While it was high school function it sounds like they let the students out of class, I'm wondering if they required the students to go see the torch or encouraged. If they just encouraged them then I don't see how this could be considered an official function, especially since he was off of school property. That said it seems like holding the principal financially accountable seems excessive. The student's free speech right might've been violated but the solution to me would be to expunge the suspension from his record.
What happens in a low-income, urban school district, where students, parents and teachers may have more first-hand exposure to drug abuse?What's if it's a white supremacy banner? Any possible incitement issues, a-la Skokie?
pfit! Everybody knows scripts are the drug of choice these days among the kids. Everybody knows that.
The justices talked about this. If the banner were defamatory or designed to harass or offend a particular group, it would not fall within the realm of free speech because your right to free speech does not give you the right to harass someone over their race, color, religion, sex, or handicap. It was not any of these things and as such the student should not have been suspended.
Following up on Andymoon's point the other issue I would see is if even if it was shwon to be inciteful since it was off of school property would the school still be able to take disciplinary action for actions committed while not at school?
well the counter-example is what if there is a kid that has hate speech on his website/myspace. would the school be able to discipline him? wouldn't it disrupt the teaching environment if that kid has inciteful comments about others perhaps in his class? i don't know.
^ Interesting question. I can see the situation where a kid was posting threatening messages on MySpace about someone in school that the school might suspend them. That is dealing directly with a potential threat to the safety of the school. This case though there wasn't threatening speech towards the school or anyone else. Given that the student speech didn't bear on anything or anyone at the school then why would this even concern the school?
i think the school can argue that drugs harm the safety of the school. that being said i obviously dont agree. but i dont think this argument is without merit.
Its not completely without merit but IMO its a troubling argument to say that the school has the right to punish student's speech outside of the schoolhouse and not directly relating to the school.
Does the proximity to the school grounds at a function encouraged for school attendance imply an intent on the part of Bong Hits to influence the student body? I guess that doesn't matter, since the principal was naive enough to formally dismiss the students for a non-school activity, basically a de-facto holiday. The mere possibility of non-educational reasons for the dismissal (like giving the teachers, and prinicpal, a day off too) probably nullifies their disciplinary authority, although classifying it as a field trip (permission slips, chaperon, meal provisions, head counts) would be a different matter, I guess. Post-ruling, how about a city/county ordinance forbidding the promotion of illegal activity within x yards of a school, does the transfer of authority from the school to the cops vanquish the on-campus, off-campus jursidictional issue? Could a parent whose kid attended the school and develops a pot habit sue the.....
All interesting questions and here's my 2 cents on those. I don't know how the proximity argument plays out but that again raises the prospect of the school exerting its power past the school house and while not being in session. Lets say a student lives accross the street from a school and is heard swearing on his front lawn after school. Can the school suspend the student based on its language policy? I don't think so. Regarding if this was an official school function I haven't seen anything about the case that says it was. The police do this all the time and also enforce truancy laws. That's not a matter of the school extending its power through the police but is the municipaility enforcing laws that apply to the municipality. I'm sure there are parents who would like to but I doubt they would have any standing since its not like the school is encouraging it or even is negligent about it. The school could argue this from the other side by pointing out that this is when school isn't in session and not on school property. For instance many people have argued that a lot of teenage sex occurs in the afternoon hours when school lets out before parents come home. If the school can be held responsible for this kid and his sign then its likely that parents could sue a school if their kid gets pregnant afterschool.
Follow up: http://www.msnbc.msn.com/id/19414576/ Supreme Court limits student speech In 'Bong Hits 4 Jesus' case, Roberts says advocacy of drug use can be curbed Updated: 1 hour, 4 minutes ago WASHINGTON - The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner. Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling. Joseph Frederick was standing on a public sidewalk across the street from the school when he unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City. Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all. His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use. "The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one." Morse suspended the student, prompting a federal civil rights lawsuit. Students in public schools don't have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era. The court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission.
Can't believe anyone would support disciplining the student. Really, people are so eager to hand over rights other people died for. These are dangerous precedents that if allowed will open the door for further erosion. When it comes to consitutional amendments, you have to be sure that what is being said or expressed is a threat to others or causes a disruptive problem. This doesn't meet that test at all.
^ In general I agree with you but reading the USSC ruling it sounds like this was an official school function which wasn't clear from the initial articles. If it was an official school function that IMO would give the principle more say in policing the speech. If it wasn't I don't see how there is grounds to police the speech by the school since the student wasn't on school property or in school at the time. I think overall though if taken broadly this ruling has some very negative implications for free speech. If read narrowly as restricting speech promoting drug use during school functions maybe not.
I wonder the same thing everyday...people act like their rights are just something that's granted...some fail to realize that the same rights so many died and suffer for can be taken away at any moment if the citizens are ignorant enough not to know the laws or not care enough about it.
