Morse v. Frederick

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This article documents an ongoing lawsuit. Information may change rapidly as the suit progresses.

Morse v. Frederick
Supreme Court of the United States
Argued March 19, 2007
Full case name: Deborah Morse and the Juneau School Board, et al. v. Joseph Frederick Docket #: 06-278 Citations: – Prior history: District Court granted summary judgment for defendant. Ninth Circuit reversed. cert. granted December 1, 2006
Holding
Awaiting decision of the Court
Court membership
Chief Justice: John Roberts Associate Justices: John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito
Case opinions
Laws applied
U.S. Const. amend. I, U.S. Const. amend. XIV, 42 U.S.C. § 1983

Morse v. Frederick is a First Amendment student free speech case that was argued before the Supreme Court of the United States on March 19, 2007. The case involves Joseph Frederick, a then 18-year-old high school senior in Juneau, Alaska, now 24, who was suspended for 10 days after displaying a "Bong Hits 4 Jesus" banner across the street from his high school during the Winter Olympics Torch Relay in 2002.^[1]

[edit] Background

The banner in question

In January 2002, students were released from Juneau-Douglas High School to watch the Olympic torch pass by. Frederick, who had not attended school that day, joined some friends on the sidewalk across from the high school (off school grounds). Frederick and his friends waited for the television cameras so they could unfurl a banner reading "Bong Hits 4 Jesus." When they displayed the banner, then-principal Deborah Morse ran across the street and seized it.

Morse initially suspended Joseph Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to 10 days after he refused to give the names of his fellow participants and quoted Thomas Jefferson on free speech.^[2] Frederick administratively appealed his suspension to the Superintendent, who denied his appeal but limited it to the time Frederick had already spent out of school prior to his appeal to the Superintendent (eight days). Frederick then appealed to the Juneau School Board, which upheld the suspension on March 19, 2002. On April 25, 2002, Frederick filed a §1983 lawsuit against Morse and the school board in the United States District Court for the District of Alaska claiming they violated his federal and state constitutional rights to free speech.

[edit] Court decisions

The district court ruled in favor of the School Board and Deborah Morse.^[3]

The Ninth Circuit reversed the District Court and granted the case to Frederick. Despite deciding that the incident took place during a school event, the court held that Frederick's student speech rights were violated. The unanimous panel decision was written by Judge Andrew Kleinfeld.^[4]

The school board asked the U.S. Supreme Court to review the Ninth Circuit's decision. On December 1, 2006, the Supreme Court agreed to do so, and heard oral arguments on March 19, 2007. The docket number is 06-278.

[edit] Groups involved

The American Civil Liberties Union has directly participated in this case on the side of Joseph Frederick. The Center for Individual Rights, National Coalition Against Censorship, and other groups that advocate First Amendment protection filed amici curiae in support of Frederick.^[5] Students for Sensible Drug Policy also noted that banning drug-related speech would undermine their ability to have chapters in public schools. Interestingly, the American Center for Law and Justice, and Rutherford Institute, and several other Christian Right groups also filed briefs on the side of Frederick, reasoning that if schools could ban "offensive" speeches they would also be able to prohibit religious speeches with which administrators disagree.^[6][7]

The National School Boards Association supports Morse and the Juneau school district, arguing that schools should be able to regulate controversial speech.^[8] Solicitor General Paul Clement has filed an amicus brief in support of the school district's decision to prohibit controversial speech.^[9]

On 19 March 2007 Students for Sensible Drug Policy organized a widely-publicized free speech rally at the Supreme Court during oral arguments. The Drug Policy Alliance and the National Youth Rights Association assisted with the rally, which brought dozens of students from across the country to the court steps, and garnered coverage from nearly every major news outlet, including USA Today, the Washington Post, the New York Times, the Philadelphia Inquirer, Fox News, MSNBC, CNN, and Channel One.

[edit] Survey of precedents

The 1969 case of Tinker held that the First Amendment applies to public schools and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. Such speech that was not disruptive of the educational environment of the school was protected and that included the wearing of black armbands as a silent protest.

The 1971 case of Cohen v. California held that the First Amendment prohibits states from making the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace.

The 1986 case of Bethel School District v. Fraser held that the First Amendment permits a public school to punish a student for giving a lewd and indecent, but not obscene, speech at a school assembly.

The 1988 case of Hazelwood held that public school officials may impose some limits on what appears in school-sponsored student publications. School officials can censor private forum student newspapers when they can justify their decision by stating a legitimate educational purpose. However, this does not allow school officials to censor articles wantonly or based on personal opinion.

[edit] Oral arguments before the United States Supreme Court

These were heard on the morning of 19 March 2007.^[10]

Petitioning attorney Kenneth Starr: 'The key is to allow the school official to interpret the message as long as that interpretation is reasonable.'

Kenneth Starr first spoke on behalf of the petitioning school principal. He described the rule in Tinker as 'that there is a right to political speech subject to disruption .. that the speech not be disruptive'. He defined the disruptiveness in general terms as behavior inimical to the educational mission of the school, and in specific terms as violation of the school's announced policy to enforce and support laws with respect to control of marijuana (and other laws in general). He also cited the cases of Fraser and Kuhlmeier.

Starr noted that in Tinker there was no written policy; it was an issue of 'standardless discretion' being exercised. That case was said to be concerned with school disciplinary actions 'casting a pall of orthodoxy to prevent the discussion of ideas'.

Justice David Souter: "'Bong hits for Jesus' sounds like just a kid's provocative statement to me."

Justice Souter remarked "'Bong Hits 4 Jesus' sounds like just a kid's provocative statement to me."

Starr defined as one of his themes that 'the key is to allow the school official to interpret the message as long as that interpretation is reasonable'.

Edwin Needler spoke on behalf of the U.S. government in support of the petitioner. He said: 'The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the illegal use of drugs'. ^[11] He cited the cases of Earl and Hazelwood in his favor.

In oral argument, Douglas Mertz for the respondent opened "This is a case about free speech. It is not about drugs." Chief Justice John Roberts (pictured) responded: "It's a case about money. Your client wants money from the principal personally for her actions in this case."

Douglas Mertz spoke for the respondent student's claim to have been unlawfully punished. He stated the two aspects of his defense as 'pure free speech', and 'the public place argument'. He argued that the respondent was 'not in school' prior to being confronted by the petitioner because of his truancy on the morning of the day in question.
Starr rebutted. He cited Bernonia and Earls as cases demonstrative of the Court's strong past stances on matter related to combating the 'scourge of drugs'. In closing and in summary he said:

"To promote drugs is utterly inconsistent with the educational mission of the school. The court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission. We know that there are constitutional limits (to lawful political expression). Those limits are captured in Tinker. A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the class room: we are light years away from that."

[edit] See also

• Tinker v. Des Moines Independent Community School District
• Hazelwood v. Kuhlmeier
• Bethel School District v. Fraser
• Cohen v. California
• Board of Education v. Earls

[edit] References

[edit] External links

• Supreme Court Oral Argument Transcript
• Video of March 19th free speech demonstration at the U.S. Supreme Court
• Opinion of the Ninth Circuit Court of Appeals
• Yale Law Journal commentary
• MSNBC article on the incident
• Washington wire article
• Law.com case overview
• Law.com cert candidate
• Student Press Law Center on the Appeals Court decision
• San Francisco Gate on the appeal
• Bong Hits for Jesus Tribe Website
• List of briefs filed in the case, including several amicus briefs