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Court Opinions ›› Morse v. Frederick (2007)
DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH FREDERICK
a.k.a. "BONG HiTS 4 JESUS" Case No. 06-278 SUPREME COURT OF THE UNITED STATES 127 S. Ct. 2618; 168 L. Ed. 2d 290; 2007 U.S. LEXIS 8514; 75 U.S.L.W. 4487; 20 Fla. L. Weekly Fed. S 431 March 19, 2007, Argued June 25, 2007, Decided Petitioners, a school principal and a school board, sought certiorari review of a judgment from the United States Court of Appeals for the Ninth Circuit, which reversed the district court's ruling that petitioners were entitled to qualified immunity in respondent student's 42 U.S.C.S. § 1983 action alleging a violation of his free speech rights under the First Amendment. The student was suspended from school after he refused the principal's direction to take down a banner that he unfurled at a school-sponsored and school-supervised event. The principal directed the student to take the banner down because the banner appeared to advocate illegal drug use in violation of school policy. The school board upheld the student's suspension. The Ninth Circuit found a First Amendment violation because the school officials punished the student without demonstrating that his speech gave rise to a risk of substantial disruption. The Court, however, held that the school officials did not violate the First Amendment by confiscating the pro-drug banner and suspending the student. The Court concluded that the "substantial disruption" rule of Tinker was not the only basis for restricting student speech. Considering the special characteristics of the school environment and the governmental interest in stopping student drug abuse, the Court held that schools were entitled to take steps to safeguard those entrusted to their care from speech that could reasonably be regarded as encouraging illegal drug use.
The Court reversed the judgment of the Ninth Circuit and it remanded the action for further proceedings.
...[W]e hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.
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At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: "[Take] bong hits . . . " -- a message equivalent, as Morse explained in her declaration, to "smoke marijuana" or "use an illegal drug." Alternatively, the phrase could be viewed as celebrating drug use -- "bong hits [are a good thing]," or "[we take] bong hits" -- and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
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Drug abuse can cause severe and permanent damage to the health and well-being of young people. [...] Just five years ago, we wrote: "The drug abuse problem among our Nation's youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse." The problem remains serious today.
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Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse.
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Tinker warned that schools may not prohibit student speech because of "undifferentiated fear or apprehension of disturbance" or "a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." [...] The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy [...] extends well beyond an abstract desire to avoid controversy.
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The concern here is not that Frederick's speech was offensive, but that it was reasonably viewed as promoting illegal drug use.
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School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act -- or not act -- on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use -- in violation of established school policy -- and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.
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I join the opinion of the Court 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."
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In most settings, the First Amendment strongly limits the government's ability to suppress speech on the ground that it presents a threat of violence. [...] But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence.
Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension. [...]
One concern is that, while the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. Illegal drugs, after all, are not the only illegal substances. What about encouraging the underage consumption of alcohol? Moreover, it is unclear how far the Court's rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick's banner had read "LEGALIZE BONG HiTS," he might be thought to receive protection from the majority's rule, which goes to speech "encouraging illegal drug use." But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.
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Legal principles must treat like instances alike. Those principles do not permit treating "drug use" separately without a satisfying explanation of why drug use is sui generis. To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (holding students cannot be compelled to recite the Pledge of Allegiance during World War II). We should decline this opportunity today.
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I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly "advocates the use of substances that are illegal to minors."
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Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship.
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No one seriously maintains that drug advocacy (much less Frederick's ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, "has no chance of starting a present conflagration."
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...[I]n [the Court's] view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. Whether or not such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.
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To the extent the Court independently finds that "BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use -- in other words, that it can most reasonably be interpreted as such -- that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that. [...] [I]t takes real imagination to read a "cryptic" message (the Court's characterization, not mine, [...]) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.
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Among other things, the Court's ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use. If Frederick's stupid reference to marijuana can in the Court's view justify censorship, then high school students everywhere could be forgiven for zipping their mouths about drugs at school lest some "reasonable" observer censor and then punish them for promoting drugs.
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...[D]rinking causes far more fatal accidents than the misuse of marijuana...
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Consider, too, that the school district's rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all "substances that are illegal to minors." Given the tragic consequences of teenage alcohol consumption -- drinking causes far more fatal accidents than the misuse of marijuana -- the school district's interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a "WINE SiPS 4 JESUS" banner -- which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message -- the breathtaking sweep of its opinion suggests it would.
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Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.
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Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans' views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting -- however inarticulately -- that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.
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In the national debate about a serious issue, it is the expression of the minority's viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.
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The Court's opinion ignores the fact that the legalization of marijuana is an issue of considerable public concern in Alaska. The State Supreme Court held in 1975 that Alaska's constitution protects the right of adults to possess less than four ounces of marijuana for personal use. Ravin v. State, 537 P.2d 494 (Alaska). In 1990, the voters of Alaska attempted to undo that decision by voting for a ballot initiative recriminalizing marijuana possession. Initiative Proposal No. 2, §§ 1-2 (effective Mar. 3, 1991), 11 Alaska Stat., p. 872 (Lexis 2006). At the time Frederick unfurled his banner, the constitutionality of that referendum had yet to be tested. It was subsequently struck down as unconstitutional. See Noy v. State, 83 P. 3d 538 (Alaska App. 2003). In the meantime, Alaska voters had approved a ballot measure decriminalizing the use of marijuana for medicinal purposes, 1998 Ballot Measure No. 8 (approved Nov. 3, 1998), 11 Alaska Stat., p. 882 (codified at Alaska Stat. §§ 11.71.090, 17.37.010-17.37.080), and had rejected a much broader measure that would have decriminalized marijuana possession and granted amnesty to anyone convicted of marijuana-related crimes, see 2000 Ballot Measure No. 5 (failed Nov. 7, 2000), 11 Alaska Stat., p. 886.
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