Freedom of Speech Rights in School: Morse et al., v Frederick

 

The bottom line of all the case law stored in any database on the issue of "What are student/teacher First Amendment rights in school" is that you do not leave your protected right to freedom of speech, assembly and petition at the door.

What they don't say is after you walk in that door, a judge can decide that for a random and  arbitrary reason -depending on your argument and your circumstances - you are denied the rights you thought that you had.

Betsy Combier

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First Amendment Educational Resources

SYLLABUS
OCTOBER TERM, 2006
MORSE V. FREDERICK


SUPREME COURT OF THE UNITED STATES

MORSE et al. v. FREDERICK

certiorari to the united states court of appeals for the ninth circuit

No. 06–278. Argued March 19, 2007—Decided June 25, 2007

At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event—respondent Frederick—refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy. 

Petitioner school board also upheld the suspension. Frederick filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights. The District Court granted petitioners summary judgment, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s speech rights. The Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, the court nonetheless found a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial disruption. It also concluded that Morse was not entitled to qualified immunity because Frederick’s right to display the banner was so clearly established that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional.

Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. Pp. 5–15.

   (a) Frederick’s argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school. Pp. 5–6.

   (b) The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner’s words—that they constitute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use—demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. Pp. 6–8.

   (c) A principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment, id., at 504, that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school,” id., at 513. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, however, upheld the suspension of a student who delivered a high school assembly speech employing “an elaborate, graphic, and explicit sexual metaphor,” id., at 678. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. 478 U. S., at 679–680. This Court reversed, holding that the school was “within its permissible authority in imposing sanctions … in response to [the student’s] offensively lewd and indecent speech.” Id., at 685. Two basic principles may be distilled from Fraser. First, it demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. See, id., at 682–683. In school, however, his First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506. Second, Fraser established that Tinker’s mode of analysis is not absolute, since the Fraser Court did not conduct the “substantial disruption” analysis. Subsequently, the Court has held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights … at the schoolhouse gate,’ … the nature of those rights is what is appropriate for children in school,” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655–656, and has recognized that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest, id., at 661. Drug abuse by the Nation’s youth is a serious problem. For example, Congress has declared that part of a school’s job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The “special characteristics of the school environment,” Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Id., at 508, 509, distinguished. Pp. 8–15.

439 F. 3d 1114, reversed and remanded.

   Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Breyer, J., filed an opinion concurring in the judgment in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.

Talking Points - Morse v. Frederick

Question: Do school authorities violate the Free Speech Clause of the First Amendment by restricting student speech at a school-supervised event when the speech may be viewed as promoting illegal drug use?

1. Do school officials have the authority to restrict student speech that they perceive as harmful to other students?

Morse

Affirmative. Yes.

Although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” school administrators must have the ability to restrict speech that is harmful to other students, in this instance promoting illegal drug use. Frederick displayed his banner at a school event. It was the duty of the principal to take action against him.

Frederick

Negative. No. 

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Here, a student was punished only because his message was deemed unpopular/controversial by school principal Morse. The banner did not disrupt the school-related event. The principal’s actions were based solely on opposition to the content of the banner, and the First Amendment protects against such acts of censorship.

2. If the banner could be interpreted as promoting illegal drug use, do schools have a compelling interest in preventing such messages at school-supervised events?

Morse

Affirmative. Yes.

Illegal drug use can have serious adverse consequences on users, including death. The school has a responsibility to discourage the use of illegal drugs. Frederick was advocating illegal drug use. The state has a compelling interest in preventing such messages. Even if Frederick’s message were nonsensical, it could easily be interpreted as promoting illegal drug use – “bong hits.” Thus, the school’s compelling interests remain.

Frederick

Negative. No. 

The “Bong Hits 4 Jesus” banner did not explicitly promote illegal drug use. It is a nonsensical phrase. Any interpretations are a result of the viewer’s perceptions. Even if the banner did have a pro-drug message, Frederick, was not engaging in illegal conduct. The state may not censor his message simply because it is unpopular. Afterall, how could one advocate for change in the law if one cannot advocate for making something legal that currently is illegal?

3. Should student speech be restricted if it can be interpreted as a distasteful, school-endorsed message?

Morse

Affirmative. Yes.

Perceptions by others can have a role to play in restricting speech. The term “bong hits” is usually associated with illegal drug use and schools have a compelling interest in preventing a student from advocating illegal drug use. The fact that Frederick displayed the banner at a school event gives the school reason to remove it so that no one would think that the school either explicitly or implicitly endorsed its message.

Frederick

Negative. No. 

Speech should not be restricted simply because it can be misinterpreted by others. If this is the criteria for restricting speech, then all speech can potentially be restricted since speech can easily be misconstrued. This interpretation would drastically undermine the protections of the First Amendment. No third party would seriously think that the school was endorsing Frederick’s message.

4. Does the First Amendment only protect the expression of coherent or rational thoughts?

Morse

Affirmative. Yes.

The First Amendment’s protection of freedom of speech is meant to promote the spread of ideas. As such, it only protects coherent or rational thoughts. Nonsensical speech is not protected by the First Amendment or, at least, is given less protection than rational speech. Even if Frederick’s speech were simply nonsensical, Morse could have restricted it without violating the First Amendment.

Frederick

Negative. No. 

Nonsensical speech is protected by the First Amendment. The principal does not have the right to determine what speech is or is not protected by the First Amendment. Under most circumstances, the First Amendment gives individuals the right to say whatever they wish so long as they are not harming others or interfering with their rights. No one was harmed by Frederick’s actions.

5. Should school officials be immune from legal liability when they take actions in good faith to protect other students from what they consider offensive speech?

Morse

Affirmative. Yes.

School principals have to act in real-time and respond to events as they arise. A principal is not a constitutional lawyer and does not know the nuances of the First Amendment. Even if Frederick’s speech was protected by the First Amendment, when a principal acts in good faith to protect other students, the principal should be given immunity from civil suits for such actions.

Frederick

Negative. No. 

Those who violate the constitutional rights of others, even inadvertently, must not be immune from the consequences of their actions. Such violations restrict constitutional rights and violators must be held accountable. Therefore, Morse should be held accountable for violating Frederick’s rights and compensate him as the law demands.

Law School Case Brief

Morse v. Frederick - 551 U.S. 393, 127 S. Ct. 2618 (2007)

RULE:

The Supreme Court has held that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings and that the rights of students must be applied in light of the special characteristics of the school environment. Consistent with these principles, the Supreme Court holds that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.

FACTS:

At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating "BONG HiTS 4 JESUS," which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event--respondent Frederick--refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy. Petitioner school board also upheld the suspension. Frederick filed suit under 42 U.S.C. § 1983, alleging that the school board and Morse had violated his First Amendment rights. The District Court granted petitioners summary judgment, ruling that they were entitled to qualified immunity and that they had not infringed Frederick's speech rights. The Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, the court nonetheless found a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial disruption. It also concluded that Morse was not entitled to qualified immunity because Frederick's right to display the banner was so clearly established that a reasonable principal in Morse's position would have understood that her actions were unconstitutional.

ISSUE:

Did the school officials violate the First Amendment by confiscating the pro-drug banner and suspending the Frederick?

ANSWER:

No.

CONCLUSION:

Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.

A principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731, the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment, id., at 504, 89 S. Ct. 733, 21 L. Ed. 2d 731, that student expression may not be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school," id., at 513, 89 S. Ct. 733, 21 L. Ed. 2d 731. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549, however, upheld the suspension of a student who delivered a high school assembly speech employing "an elaborate, graphic, and explicit sexual metaphor," id., at 678, 106 S. Ct. 3159, 92 L. Ed. 2d 549. Analyzing the case under Tinker, the lower courts had  found no disruption, and therefore no basis for discipline. This Court reversed, holding that the school was "within its permissible authority in imposing sanctions . . . in response to [the student's] offensively lewd and indecent speech.Two basic principles may be distilled from Fraser. First, it demonstrates that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Id., at 682, 106 S. Ct. 3159, 92 L. Ed. 2d 549. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. In school, however, his First Amendment rights were circumscribed "in light of the special characteristics of the school environment." Tinker,supra, at 506, 89 S. Ct. 733, 21 L. Ed. 2d 731. Second, Fraser established that Tinker's mode of analysis is not absolute, since the Fraser Court did not conduct the "substantial disruption" analysis. Subsequently, the Court has held in the Fourth Amendment context that "while children assuredly do not 'shed their constitutional rights . . . at the schoolhouse gate,' . . . the nature of those rights is what is appropriate for children in school," Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655-656, 115 S. Ct. 2386, 132 L. Ed. 2d 564, and has recognized that deterring drug use by schoolchildren is an "important--indeed, perhaps compelling" interest, id., at 661, 115 S. Ct. 2386, 132 L. Ed. 2d 564. Drug abuse by the Nation's youth is a serious problem. For example, Congress has declared that part of a school's job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The "special characteristics of the school environment," Tinker, 393 U.S., at 506, 89 S. Ct. 733, 21 L. Ed. 2d 731, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Id., at 508, 509, 89 S. Ct. 733, 21 L. Ed. 2d 731, distinguished.

First Amendment, Rule of Law, and Separation of Powers Have
Something for Everyone

Need help talking with students about current events? Find classroom-ready resources that are immediately useable in the distance learning environment. Resources include videos and discussion-starter questions.

The First Amendment

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The Rule of Law

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The Separation of Powers

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How the Separation of Powers Protects the Bill of Rights

What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging the freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag).
  West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
  Tinker v. Des Moines, 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages.
  Cohen v. California, 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns.
  Buckley v. Valeo, 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions).
  Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest).
  Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”).
  Schenck v. United States, 249 U.S. 47 (1919).
• To make or distribute obscene materials.
  Roth v. United States, 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest.
  United States v. O’Brien, 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration. 
  Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event.
  Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event.
  Morse v. Frederick, __ U.S. __ (2007).