MORSE v. FREDERICK
DISPOSITION:
Reversed
JUDGES:
Authored by Molly Warner and Galen Bernard with whom Chief Justice Hanson
joins.
In
the Matter of Free Speech: DEBORAH MORSE Respondent, v. JOSEPH FREDERICK,
appellant.
HANSON COURT
October 25, 2009
PRIOR HISTORY: Appeal from the Supreme Court of the United States Docket No: 06-278. Date Filed: 02/20/2007
COUNSEL: For Appellant: Russ E. Caditz-Peck, Walla Walla, WA
For Respondent: Kayla C. Cooper, Walla Walla, WA
I FACTS OF THE CASE
On January 24th, 2002, the
Olympic Torch Relay passed through Juneau, Alaska. Community members and
students of Juneau-Douglas High School lined the streets to watch. Among them
was 18-year-old Joseph Frederick, a senior at Juneau- Douglas High School. When
the torch neared the place where Frederick was standing, he and several others,
unfurled a banner that read “Bong Hits 4 Jesus.” Principle Deborah Morse
demanded Frederick take down the sign, and when he did not, she suspended him
from school for ten days.
II
ARGUMENTS
Justice
Molly Warner with whom Justice Galen Bernard and Chief Justice James Hanson
join
A. The decision of the
Supreme Court violated the First Amendment by permitting viewpoint
discrimination
The Supreme Court's ruling in Morse v Frederick is not consistent with
the First Amendment. Morse engaged in viewpoint discrimination and the Court’s
decision essentially permitted public school administrators to censor student
speech they deem out of line with the mission of the school. That is viewpoint discrimination
on its face and it is a direct violation of the First Amendment. This Court has
recognized in past cases that the government cannot censor speech on the basis
of personal dislike nor employ viewpoint discrimination when the opinions
presented by the speaker are the reasons for restriction (Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. (1995). Prior to Morse v Frederick, we held that no part of the government,
including public schools, could discriminate against speech it found undesirable.
In Tinker v. Des Moines, we found
that “[neither] students [n]or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate,” (Tinker v. Des Moines Independent Community School District , U.S.
503 (1969)). A student's ability to express politically
charged ideas is lawful, even if the views expressed are contrary to the
institution, or to the school policy. Schools may regulate speech only if they
can show that the censorship spawns from “something
more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint” (Tinker,
393 U.S. At 513). We find that Morse acted out of disapproval for the
composition of his words. Had Frederick's message criticized the consumption of
illegal drugs he would not have been suspended.
Instead, Morse censored Frederick’s speech because she held the belief
that the viewpoint of the banner “appeared to advocate the use of illegal
drugs” (Morse v. Frederick, No.
06-278, at 25 (2007)). Principle Morse acknowledged that she “disagreed with
the pro-drug viewpoint she ascribed to the banner” (post, at 5). Schools cannot
be allowed to suppress ideas that are simply inconsistent with their agenda or
image; they must follow the Constitution and allow for a free marketplace of
ideas including the expression of differing, even unpopular and contrary
political views.
Student First Amendment
rights need more protection than granted by the Supreme Court’s decision in Morse. Schools have a responsibility to
allow discussions about politically charged issues. Indeed, “the classroom is
peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders
trained through wide exposure to that robust exchange of ideas” (post, at 637).
The constitutional right to communicate opinions freely should be taught,
tolerated, and respected. “The process of educating our youth for citizenship
in public schools is not confined to books, the curriculum, and the civics
class; schools must teach by example the shared values of a civilized social
order” (Bethel School District v Fraser US 403). In Bethel School District v Fraser the Court found that schools should
strive to instill the customs of society as individual values in their
students. These “fundamental values of habits and manners of civility” that
were deemed essential to a democratic society include “tolerance of divergent
political and religious views, even when the views expressed may be unpopular” (Bethel School District v Fraser US 403
(1986)). Ultimately, the Supreme Court's ruling in favor of Morse enables
schools to suppress ideas that are not consistent with their overarching
institutional agenda at the expense of promoting a free marketplace for ideas
at the heart of the First Amendment.
If the Court allows this kind
of viewpoint discrimination, what other political suppression might occur? If a
school were to have a conservative political leaning it would then be able to
restrict the political rhetoric that they construed to be anti conservative.
Likewise, a more liberal school dedicated to legalizing drugs could constrain a
student that wished to speak out against drug use. Ultimately, a ruling in
favor of Morse would enable schools to suppress ideas that are not consistent
with their institutional agenda. The cumulative effect of allowing
administrators such wide ranging deference to determine what is and is not
consistent with their agenda sets off a chain of events that diminishes the
strength of the First Amendment and with it the Constitution as a whole.
B.
Frederick's Speech did not advocate drug use
Contrary to the Supreme
Court's incorrect finding, Frederick's sign cannot definitively be declared as
advocating drug use. In reality, Frederick's sign is purely nonsensical, and
aimed to attract television cameras, and perhaps demonstrate the weak standing
of the First Amendment in schools. When questioned about the sign Frederick
stated “i find it absurdly funny. I was not promoting drugs. I assumed most
people would take it as a joke.” Frederick's claim is plausible; it can
certainly be read without taking it as a mandate that everyone ought to do
drugs or that drugs are good, which the First Amendment protects.
Morse assumed that Frederick
meant the imperative “take bong hits.” However, the message cannot be assumed
to be an imperative. When read in its entirety, the message “BONG HiTS 4 JESUS”
is too meaningless, subtle and unclear to be “reason[ably] regard[ed] as
promoting illegal drug use.” (Caditz-Peck counsel for the Appellant) When
combined with another socially delicate subject, such as religion, it is
apparent that Frederick was simply attempting to create a heated message that
would be widely discussed. These two subjects, religion and drugs, could be
read as comedic, satirical, ironic, or nonsensical. This leaves far too much
room for subjective interpretation. This Court will not allow statements that
are so vague to be restricted on the basis of one interpretation of the
message. Indeed, Frederick stated that the phrase 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.” (post, at 1117–1118) Indeed, a simple invocation of a phrase with
a drug theme does not equal advocacy for the use of drugs. Simply because a
drug theme is used does not mean that the message is a call to do drugs.
Frederick’s ambiguous message was not written as an imperative; the language is
too vague to make such a concrete assumption. This court held in 2007 that if
there are discrepancies in interpretation of the meaning of speech the benefit
of the doubt will be given to the speaker (Federal
Election Com’n v. Wisconsin Right to
Life, Inc., 551 U.S. (2007)) and it applies in this case.
The message was a clear play
for media attention. Frederick states “the
words were just nonsense meant to attract television cameras,” (post, at
1117–1118). The events reinforce Frederick’s claim. The banner itself was not
raised until the cameras and the torch were nearing indicating that the
students of Juneau-Douglas High School were not the target of the message, but
rather the media and television crews that were passing through. This renders
the respondent's argument that “this Court correctly established a recognition
that attempts to prevent drug use by schoolchildren is an “important—indeed,
perhaps compelling” concern (Vernonia
School Dist., 47J v. Acton, 515 U.S at 661)” as not relevant to this case. The
directed audience was the television crew, not the younger “impressionable”
students. Frederick was not calling for the students to smoke marijuana nor was
Frederick advising others to smoke marijuana. Respondent's claim that Morse
punished Frederick reasonably is not tenable. Her claim that she “selected
Fredericks’ speech because it raised a potential danger to the students she was
responsible for” (Kayla respondent for Morse) is a stretch. While it is true
that it is her duty to safeguard the students, it is not true that this sign
was a potential danger to them. Frederick was attempting to obtain the
attention of the network television public, not impact the decisions, nor harm
the health of fellow students.
Additionally, Frederick was
trying to assert his rights as a citizen of the United States. Frederick was
not just pronouncing a hard to discern slogan; he was also attempting to take a
stand against limited student First Amendment rights. He was testing the
school's response to political discourse and their commitment to the
Constitution. Political discourse ought to be open to challenge and discussion.
However, the Supreme Court limited the level to which students were allowed to
express controversial subject matter. The Court may not overturn 40 years of
legal precedents that have allowed for the freedom of speech for students and
safeguard schools as a forum for idea exchange.
Justice Galen Bernard with whom Justice Molly Werner and Chief Justice James Hanson join
C. Principal Morse’s authority to restrict an individual student's expression is diminished when that expression takes place in a setting that extends beyond the school to the public forum.
While we find Morse erred in interpreting Frederick’s expression as clearly being drug use advocacy, and in her discriminatory censorship of that view, it is also important to note that her authority to restrict Frederick’s expression based on these determinations was diminished because the expression took place not just in a school setting but also in a public venue for a public audience. While the respondent spends much of its brief defending its claim that the speech took place in a school setting, that is not the issue, and the appellant does not claim it to be. The speech did take place in a school setting. The issue that Frederick raises and that the respondent fails to address is that the speech also “took place in the context of an Olympic Torch Relay parade” (Brief for Appellant at 7). This public context diminishes the authority Morse had to restrict Frederick’s expression.
In noting this public context and its significance, the Court affirms the Appellant’s claim that “Chief Justice Roberts’ assertion that Frederick’s speech should be viewed within the frame of ‘special characteristics of the school environment,’ a phrase which he cited from Tinker, is a misreading of the case, which required a more careful emphasis on the public—rather than classroom—setting in which the speech occurred.” (Brief for Appellant at 8). Television cameras were present at the event, broadcasting the proceedings to a public audience even beyond that immediately present. Frederick’s contention that “the words were just nonsense meant to attract television cameras” (post, at 1117–1118) seems reasonable since the sign was displayed only when the television cameras accompanying the Torch relay neared. The Respondent provides no counter to the conclusion that Frederick’s speech was tailored to the public audience he knew existed at the relay itself and through the wider lens of the cameras.
Despite the presence of a public audience, the school maintains it had a right to restrict appellant’s speech, arguing: “That Tinker states that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ does not mean that students are automatically granted them in full when they technically leave the physical boundaries of the school during, in this case, an approved social school event.” In trying to extend school authority to the context at issue under the auspices of “an approved social school event,” (Brief for Respondent at 3) the school compares the setting that Frederick’s speech took place in to a class field trip to a museum because of its public nature while still retaining school-sponsorship. To make this claim, the respondent, though not citing it, presumably relies on the narrowed freedom of speech for students within a school-sponsored event set forth in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). This Court finds both a class field trip and Hazelwood to be flawed comparisons to this case.
The Hazelwood court argued that school-sponsorship depended on the degree to which school officials “organized and supervised” the event. On a field trip, students and teachers exit an exclusively school-centered sphere such as a classroom. In this context, any student or group of students remain connected to the school and under its direct supervision and organization, but they also enter a public setting. In that context, the school has a reasonable and important interest in avoiding disruptive behavior, but students also have significant First Amendment protection particularly in their ability to express themselves to the larger public. While there was supervision at this particular event, the argument that Frederick's speech took place during an event exclusively supervised and organized by the school does not stand. When Principal Morse released the students, including Frederick, into an event organized by others, an Olympic Torch Relay parade, supervision, while evident given Morse’s actions, does not justify a claim that it was exclusively a school event; it was also clearly a public event.
As such, the school does not maintain the same authority to restrict its students’ speech when that speech is directed to a public audience as it clearly was in this case, given Frederick directed the banner toward the television cameras. It is important to protect students’ right to free speech as members of a society that extends beyond the school, even if that speech is nothing more than “nonsense meant to attract television cameras” (Brief for Appellant at 9). Tinker was clear about the First Amendment’s role in enabling youth to learn and grow from an open discourse of viewpoints. “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas” (Tinker, 393 U.S. at 637).
Both sides agree that Tinker established that the context in which student speech occurs is crucial in determining the degree of First Amendment protection afforded the speech. Here, the context favors deference not to the school’s authority but rather to the student’s right to free speech. As Appellant argues, “educators are certainly granted the authority to preserve the educational environment in which students learn and partake in class work, but this was not a classroom” (Brief for Appellant at 7). As it was not a classroom setting, no direct disruption of academic work occurred. The argument that the banner displayed by Frederick and others would “"materially and substantially disrupt the work and discipline of the school" (Tinker, 393 U.S. at 513) in a broader, long term sense by undermining its pedagogical interests in discipline and student performance in the classroom with a pro drug-use message is invalid because Frederick made no direct request to students to engage in illegal drug use. That his political viewpoint was contrary to that of the school increases rather than decreases its First Amendment protection; the core of the right is to protect such controversial speech. Moreover, even if the banner did promote drug use, it does not meet the requirement of imminent lawlessness for schools to restrict such student speech that we have stated repeatedly in other cases regarding censorship and summarized in Brandenburg v. Ohio 395 US 444 1969. In that case, the Court ruled that: “The constitutional guarantee of free speech and free press do not permit a state to forbid or proscribe advocacy… of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” That an idea would ultimately cause bad consequences cannot be the basis for censorship; to do so would restrict many of the ideas that people express. This Court rejects censorship of student speech without clear evidence it would cause or has caused an immediate or imminent substantial danger or disruption to the school’s academic work.
Conclusion
This Court agrees with the Respondent’s assertion that this case is of the utmost importance. “The precedents that this case could establish are crucial to students’ rights and wellbeing. It is therefore critical that Morse v. Frederick not only correctly reads the precedents set in previous cases, but correctly and narrowly applies them in order to fit this case’s unique, particular context.” (Brief for Respondent 7) The protection of a student’s speech does not lose importance when it takes place within a school setting. If anything, Tinker held that free speech is most vulnerable and thus protection is most crucial in the case of students, all the more so when student expression occurs in a public setting. A school must therefore show that the speech it sought to restrict disrupted (not merely disagreed with) a legitimate and compelling pedagogical interest. Frederick’s expression can be reasonably interpreted as being not pro drug-use and at a minimum did not seek to provoke imminent use of illegal drugs. His words took place in a public environment not solely the domain of the school, and were not disruptive as determined by Tinker. We therefore find that Principal Morse violated his First Amendment rights in demanding he take down the banner and punishing him for its display.
As such, we reverse.