Morse et al. v. Frederick
127 S. Ct. 2618 (2007)
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Rule of Law:
A public school may restrict student speech at a school-sanctioned event if that speech is reasonably viewed by school officials as promoting illegal drug use.
Facts:
- The Olympic Torch Relay passed in front of Juneau-Douglas High School (JDHS) during school hours.
- Principal Deborah Morse permitted students and staff to leave class to observe the relay as an approved school event.
- JDHS senior Joseph Frederick and his friends gathered across the street from the school among other students.
- As the torchbearers and television crews passed, Frederick and his friends unfurled a 14-foot banner that read, 'BONG HiTS 4 JESUS.'
- Principal Morse saw the banner and believed it promoted illegal drug use, which violated a specific school policy prohibiting expression that advocates for the use of illegal substances.
- Morse crossed the street and directed the students to take the banner down.
- Frederick was the only student who refused to comply.
- Morse confiscated the banner and subsequently suspended Frederick for 10 days.
Procedural Posture:
- Joseph Frederick filed a lawsuit under 42 U.S.C. § 1983 against Principal Morse and the school board in the U.S. District Court for the District of Alaska, alleging his First Amendment rights were violated.
- The District Court granted summary judgment for the school board and Morse, ruling they were entitled to qualified immunity and had not violated Frederick's rights.
- Frederick, as appellant, appealed to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit reversed the District Court's decision, holding that the school, as appellee, had violated Frederick's First Amendment rights and that Morse was not entitled to qualified immunity.
- Principal Morse and the school board successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Does a public school principal's restriction of student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use, violate the student's First Amendment rights?
Opinions:
Majority - Chief Justice Roberts
No. A public school principal's restriction of student speech at a school event does not violate the First Amendment when that speech is reasonably viewed as promoting illegal drug use. While students do not shed their constitutional rights at the schoolhouse gate, their rights are not coextensive with those of adults in other settings. The Court's precedents in Tinker (substantial disruption), Fraser (lewd and indecent speech), and Kuhlmeier (school-sponsored speech) establish that the Tinker framework is not absolute. Given the school's important, perhaps compelling, interest in deterring drug use among its students, school officials may restrict speech that they reasonably regard as promoting such illegal activity. Principal Morse's interpretation of the banner was reasonable, and the First Amendment does not require schools to tolerate student expression that contributes to the dangers of illegal drug use at school events.
Dissenting - Justice Stevens
Yes. A principal's restriction of student speech under these circumstances violates the First Amendment. The message on the banner was nonsensical and ambiguous, not a serious advocacy of illegal drug use; it was a student's attempt to get on television. Punishing Frederick for a viewpoint the principal disagreed with constitutes stark viewpoint discrimination, which is at odds with the core principles of the First Amendment. The majority carves out a new, unsupported exception for pro-drug speech that trivializes the cardinal principles of Tinker and Brandenburg v. Ohio, as the speech did not cause a disruption or constitute incitement to imminent lawless action. This decision will chill student debate on important but controversial social issues, such as the wisdom of the 'war on drugs.'
Concurring - Justice Thomas
While joining the majority's opinion, Justice Thomas wrote separately to argue that the standard from Tinker v. Des Moines should be overturned entirely. Based on the history of public education and the legal doctrine of in loco parentis, the First Amendment, as originally understood, does not protect student speech in public schools. Historically, schools were given broad authority to discipline students and maintain order, including regulating student speech, without judicial interference. Tinker's framework represents a departure from this original understanding by improperly substituting judicial oversight for the traditional authority of local school boards and teachers.
Concurring - Justice Alito
Joining the majority, Justice Alito wrote to emphasize the narrowness of the holding. The decision should only permit schools to restrict speech that a reasonable observer would interpret as advocating illegal drug use. It provides no support for restricting speech that can plausibly be interpreted as commenting on a political or social issue, including debates about drug policy or legalization. The 'educational mission' of a school is too easily manipulated to justify viewpoint discrimination, and this case's holding should be confined to the specific, serious threat that drug advocacy poses to student safety in the school environment.
Concurring - Justice Breyer
Justice Breyer would not have decided the First Amendment question. The case should have been resolved on the narrower grounds of qualified immunity, which protects public officials from liability for damages unless their conduct violates clearly established law. Given the uncertainty in how Tinker, Fraser, and Kuhlmeier applied to this novel situation, Principal Morse's actions did not violate a 'clearly established' right. Deciding the difficult and portentous constitutional question was unnecessary and risks creating a legal principle that is either too broad or too narrow, leading to further litigation.
Analysis:
This decision established a new category of unprotected student speech, creating a drug-speech exception to the traditional Tinker framework. It allows school administrators to restrict speech based on its content—specifically, a pro-drug message—without demonstrating a likelihood of substantial disruption. The ruling grants schools significant authority to combat messages they deem harmful to their educational mission and student welfare. However, it also raises questions about the line between advocating illegal drug use and engaging in political speech about drug policy, a boundary that future litigation will likely need to define.
