Supreme Court of the United States

In the Matter of: Deborah Morse; Juneau School Board, respondent,

v. Joseph Frederick, Appellant

127 S. Ct. 2618, 2007

No. 06-278

Prior History: The Supreme Court agreed to review the Ninth Circuit’s decision on December 1, 2006. The oral arguments were made on 19 March 2007.

Disposition: Reverse

Counsel for the Appellant: Galen Phillips

Justices Nick Griffin and Sarah Golden delivered the opinion of the Court with whom Chief Justice James Hanson joins.

Argued 28 February 2008 — Decided 25 April 2008

I. Facts of the Case

On January 24, 2002 the Olympic torch, destined for Salt Lake City, was scheduled to pass Juneau-Douglas High School. The students were excused from classes to watch the torch pass at 9:30am. This public event was school-sanctioned and school-supervised.[i]

Joseph Frederick did not attend classes on the 24th because his car was stuck in the snow. Frederick did, however, make it in time to view the torch procession. When Frederick arrived to the area he stood across the street from the school with some friends. When the television cameras, which accompanied the torch, passed Frederick and his friends, they unfurled a fourteen-foot banner, which read, “BONG HiTS 4 JESUS.” Upon seeing the banner Principal Morse crossed the street and ordered that the banner be taken down. Frederick refused to obey and so Principal Morse took the banner from him and suspended him for five days. When Frederick inquired about his constitutional rights and quoted Thomas Jefferson, the teacher increased the suspension to ten days.[ii]

I. Frederick’s Message is not clearly Pro-Drug

Justice Nick Griffin with whom Justice Sarah Golden and Chief Justice James Hanson join

The Court has found that there is no conclusive evidence Frederick’s message was pro-drug. In fact, the Plaintiff’s “credible and uncontradicted explanation for the message” was that “he just wanted to get on television” (post, at 6). His oblique reference to drugs was merely a controversial catchword to attract attention rather then advocate the use of illegal drugs. This is further evidenced by the alternative interpretations of the sign’s message as “curious,” “ambiguous,” “nonsense,” “ridiculous,” “obscure,” “silly,” “quixotic,” and “stupid.” Although Morse contends that the phrase could be interpreted as an imperative, “[Take] bong hits…” a statement that could be equivalent to “smoke marijuana,” the Court finds that it is necessary to interpret the statement in its entirety to determine the intended message. Interpreting the banner in its entirety is critical to determining the desired message of the speaker, to prevent it from being distorted or misconstrued. This is apparent in this instance when, taken alone, bong hits could be viewed as advocating illegal drugs. However, when paired with “4jesus” the intent of the message can be interpreted as ironic or satirical.

Additionally, there is a very low probability that the banner in question would promote illicit drug use, despite Morse’s claims that her actions were intended to prevent promotion of illegal drug use. In our previous school decisions “censorship or suppression of expression is tolerated by our Constitution only when the expression presents a clear and present danger,” (West Virginia board of Education v. Barnette, 319 U.S. 624, 633 1945) and in this context the Court finds that the banner does not present any clear and present danger to the students that Morse was claiming to protect. The Court believes that for Morse to have had the legal jurisdiction to censor Fredericks’ speech, it would have had to deliberately incite much more imminent unlawful action, which it did not.

Frederick has a First Amendment right to express his views on drug use, yet, even if his sign did endorse illegal drug use, the First Amendment would still protect his speech. In this case, the Juneau School District claimed it had an obligation to prevent drug use by minors, citing the Safe and Drug Free Schools and Communities Act. (20 U.S.C. 7101 et. Seq. SDFSCA) However, upon further investigation, nowhere within the literature of the SDFSCA does it prescribe schools to prohibit or limit student speech “having to do with drugs, and in fact, […] its emphasis rests squarely on the promotion of speech and other forms of disseminating information on the subject.” (20 U.S.C. 7115[b]) In fact, the Act encourages discourse regarding drugs to emerge in the school sphere to promote critical inquiry and understanding. Furthermore, none of the justifications, presented by Morse, for censoring Frederick’s speech stand in this context. To demonstrate this, we finds that it is necessary to clarify the limits of Morse’s authority as administrator in regards to disruptive speech. Given the precedent established by Tinker, Morse would be justified in forcing Frederick to put down his banner if its physical presence interrupted the order of the students assembling, rather then basing her decision upon the content of the sign.

Moreover, this Court is unwilling to completely default to the administrator’s interpretation of the sign in this, specific context. This is not exclusively an academic, classroom setting. This is a public event viewed by television cameras, attended by members from all spectrums of the community, including students. Therefore, in a case where a student is engaging in communication with the public, an administrator should receive less deference to interpret and restrict a public message given the school’s extension into the public sphere, in this case where a student is engaging in a communication to the public. In Federal Election Commission v. Wisconsin Right to Life, Inc. where the Court ruled that, when the “First Amendment is implicated, the tie goes to the speaker.” (Federal Election Commission v. Wisconsin Right to Life, Inc., 129 S. Ct. 2652, 266, 2674 2007) This is especially true when looking to Porter v. Ascension Parish School Bd. where we ruled that “there is some uncertainty at the outer boundaries as to when Courts should apply school-speech precedents.” (F. 3d 608, 615, n. 22 CA5 2004) This distinction is very important to clarify, as we do grant the necessity of restrictions to free speech in the world of the classroom where the pedagogical growth of students is the paramount concern and where disruptions should be given little if any tolerance; however, outside of the classroom these laws assume a different context; one where a balancing of discipline and public expression both become important.

II. MORSE’S ACTIONS ARE Viewpoint discrimination AND THAT violates THE First Amendment

Viewpoint discrimination is a direct violation of the First Amendment and therefore, is unconstitutional. In Rosenberger, Ronald, ET AL v. Rector and Visitors of UVA, Justice Kennedy articulated that, “viewpoint discrimination is […] an egregious form of content discrimination, and [that] the government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction” (Rosenberger, Ronald, ET AL v. Rector and Visitors of UVA, 115 S. Ct. 417 1994). In this case, Principal Morse justified her actions on the grounds that the Plaintiff’s message “appeared to advocate the use of illegal drugs,” (id. At 61a) and that the “display of the banner would be construed by students, District personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use.” (Id., at 25) This is viewpoint discrimination and unconstitutional because one cannot restrict speech based on the content of the message, in this case a pro-drug avocation. Speech cannot be restricted for this reason. Morse might have restricted the speech if it incited a disruption but did not. Frederick’s message in no way impaired the educational development of his peers, so, as we noted in Tinker, his speech cannot lawfully be restricted. Moreover, consistent with Tinker, a student’s desire to express dissatisfaction with government policy or even to advocate “BONGHiTS4JESUS” is lawful, even if it expresses a viewpoint contrary to the school policy. Given the dangers posed by viewpoint discrimination to the integrity of the First Amendment, the Court finds that Morse’s action towards the Plaintiff was based on the content of Frederick’s speech and thus should be rendered unconstitutional.

Ultimately a ruling in favor of Morse would enable schools to suppress ideas that are not consistent with their overarching institutional agenda. By allowing administrators such wide ranging deference to determine what is and is not consistent with their agenda locks the Court into a slippery slope, as it would mark the end of equal protections of freedom of speech at school. Not only would this severely undermine the effectiveness of First Amendment protections, it would establish a precedent authorizing future cases of viewpoint discrimination. For example, if a student demonstrated with a poster that stated an individual suffering from cancer could use marijuana as a method of pain relief, a school administrator could still argue that it is a pro-drug message and should be taken down, as its presence could impair the school’s supposed educational mission. At this point the school’s educational mission becomes compromised, student speech is restricted, giving rise to a disconnect between the individual and institution. As a result, the administrators actions are transformed into an oppressive force, one through which student teacher cooperation and pedagogical pursuits take a lower priority to maintaining a false notion of intellectual security. Additionally, (in a broader context unrelated to drugs) a decision in favor of Morse would functionally open the door for schools to censor private, non-disruptive student speech simply because the school disagrees with its message. It is not to say that there is never a justification for restricting students speech, there most assuredly is, however “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Thus, a proper application of First Amendment rights plays a central role in shaping our democratic society, and cannot be disregarded within our public schools.

III. Students do not “shed their constitutional rights when they enter the schoolhouse gate.”[iii]

Justice Sarah Golden with whom Justice Nick Griffin and Chief Justice James Hanson join

Underlying the importance of avoiding viewpoint discrimination is the need to maintain the free expression rights of students in our nation’s schools. In 1969, the Supreme Court of the United States broached the issue of student civil liberties in the landmark case Tinker v. Des Moines Independent Community School Dist. (393 U. S. 503, 506, 1969). The ruling of the Court resulted in an important precedent; that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[iv] The Tinker decision set a tone in an educational environment that not only do students and teachers not forfeit civil liberties upon entering a public institution, they should expect public education to emphasize free expression, the marketplace of ideas, and teaching of democratic values. Multiple viewpoints have the potential to facilitate critical thinking and, indeed, create a more complex and effective learning environment, which is a fundamental building block in an education.[v]

Since Tinker, this Court has placed some limitations on student speech, most notably in the cases of Bethel School District No. 403 v. Fraser (No. 84-1667 478 U.S. 675, 1986) and Hazelwood School District v. Kuhlmeier (No. 86-836 484 U.S. 260, 1988) but none of the three can justify Principal Deborah Morse’s choice to censor Joseph Frederick. Tinker remains good law and is most applicable. It is the case that recognized the right of school administrators to regulate student speech but only under certain conditions. In Tinker, we said that First Amendment rights vary slightly in the “special characteristic of the school environment” but said that 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”[vi] and that the speech must “materially disrupt classwork or involve substantial disorder or invasion of the rights of others.” (Tinker, 393 U.S. at 513).

We find today that Frederick’s speech was not disruptive within the meaning of the Tinker decision, as his banner did not interrupt any academic work, any part of the school’s event nor inhibit the rights of any student or teacher. Although schools have used Tinker to discipline student speech that disrupts the institution’s academic progress, this cannot be applied in this context, as the banner in no way caused disorder. Moreover, the school specified no disruption caused by Frederick’s banner within the brief they presented to the court, so we must assume that this is not at issue today. Therefore when examined through Tinker, Frederick’s speech cannot be censored.

Further, Frederick’s sign is not “lewd, vulgar, indecent, or offensive” in the context of mandatory school events (Fraser, 478 U.S. at 685). Again, the banner did not violate this precedent. Frederick’s message was in no way lewd, vulgar, indecent nor offensive but rather, as previously stated, ambiguous and vague. The school event was also not mandatory, as it was in the case of Fraser. Using Fraser as a lens, the censorship of Frederick’s viewpoint was outside of the jurisdiction of Morse. Since the school did not sponsor Frederick’s banner nor was the banner created through a school sponsored activity, Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) is not apposite for it applies only when educators’ “actions are reasonably related to legitimate pedagogical concerns” such as editing news articles Kuhlmeier, supra, at 273.

This Court has no legal basis for which we could condone Morse’s choice to censor Frederick’s viewpoint. But beyond having no legal precedent that would support the suppression of Frederick’s viewpoint, this Court believes there is good reason to support his right to expression in this case. As silly as Frederick’s message may be, this court believes that the danger of restricting his viewpoint based on its content is far more dangerous to an academic environment than a student’s exposure to an ambiguous message. An important aspect of an academic environment is encouraging a marketplace for the exchange of ideas and, indeed, encouraging an environment consistent with this nation’s democratic values. We are loathe to let a silly message be the basis for endorsing restrictions that could restrict such exchanges.

As such, we reverse.