Well, I’m getting a little bored with the latest opinions to come down from the Court, so lets look at one that is coming up. In Morse v. Fredrick the Court is asked to rule on whether or not Fredrick’s right to hold up a sign that reads BONG HITS 4 JESUS is deserving of First Amendment protection. You an read the oral arguments here.
In 2002, the Olympic torch was paraded through the city of Juneau, Alaska. The school board of Juneau allowed students to be let out of class in order to take part in this historic occasion. Deborah Morse, the principal of Juneau-Douglas High School, supervised students as they were let out of class in order to watch the Olympic parade which was rolling through town. Joseph Fredrick, a high school student, went across the street with a few of his peers and unfurled a banner that read “BONG HITS 4 JESUS.” Morse first asked the student to put away the banner, and when he refused to do so, she grabbed the banner and told him to report to class. He refused and simply walked away. A few days later, he was summoned to her office and told that his banner had been offensive and violated a school policy against drugs. He gave sarcastic and mocking answers to the principal and she subsequently suspended him for 10 days for multiple infractions including truancy (he had skipped school on the day of the parade), disruptive behavior, and refusal to assist with an investigation along with the underlying display of offensive material. After the suspension was ordered, school officials noted the sudden appearance of messages and graffiti glorifying and mimicking Fredrick’s banner. The facts of the case are more important in this case than in most because the Justices call into question the actual disturbance that was created by unfurling a banner in this specific case.
The most notable case prior to this one about freedom of speech in school is Tinker v. Des Moines. In Tinker the Court held that students were within their rights to wear black arm bands in protest of the Vietnam War in school.
Representing Deborah Morse before the Supreme Court is Kenneth Starr of Whitewater fame. During arguments, Starr argues that this case is specifically about drugs, illicit substances, and the school’s right to enforce any policy concurrent to their general mission to discourage their use.
There were a few key issues in this case:
1) Free Speech versus Drug Use- Both Ken Starr and Edwin Kneedler (also on behalf of Morse) start their testimony with a declaration that this case is about the war on drugs in schools. Douglas Mertz, arguing on behalf of Fredrick, starts by saying ‘this is a case about free speech.’ I would be truly surprised if the opinions came down to the war on drugs.
2) Disruption- The biggest issue in this case is whether or not Fredrick’s banner created a ‘disruption.’ Justice Souter asks Starr if a disruption is caused by anything that “disagree[s] with official school policy.” Starr evades the question because it is clear that Fredrick did little more than that and and it is inconceivable that the Justices would accept such a broad definition. That type of definition could be used to justify a dangerously large swath of censorship in school.
Justice Souter had an interesting dialogue with Mr. Starr over the issue of the disruption:
… don’t we have to be more specific about the context in determining whether there’s disruption? If it’s a school trip to an art museum, unfurling a 15 foot banner in front of the pictures is clearly going to be disruptive of the object of the trip. Unfurling a banner in a classroom is going to be disruptive to the teaching of Shakespeare or whatever is supposed to be going on in there.
What we have here is the unfurling of a banner on a sidewalk in a crowd with kids throwing snowballs waiting for some — somebody to run by with a TV camera nearby. And there is a real question as to whether, it seems to me, as to whether it is in a kind of practical, real world sense, disruptive of anything. And if there is such a question, shouldn’t the answer favor the right to, to make the speech as opposed to favor the right to suppress it?
Justice Alito is particularly concerned about giving schools free reign to defend their ‘educational mission.’
3) Intent- Justices Souter and Ginsburg seem primarily concerned with the intent of Fredrick’s message. Justice Souter feels as though the message wasn’t necessarily inconsistent with current laws or even school policy. To him, Fredrick’s message was nothing more than ‘just a kid’s provocative statement.’ Justice Ginsburg goes so far as to suggest that this message may not have even advocated smoking pot. (See my post about Justice Ginsburg and Pot here)
4) Message v. Banner- I wasn’t exactly sure how to label this idea, but at the center of the debate is the question of whether Fredrick was in trouble strictly because of the message he displayed or the act of displaying a 14-foot banner.
Starr makes it very clear that the central focus of the case is not about unfurling a banner, but instead about the message present on that banner. He contends that there is nothing inherently problematic about unfurling a 14-foot banner, but at the same time he argues that a teacher can ban the unfurling of banners because they could be disruptive. This notion is surprising to few of the Justices including Justices Scalia, Stevens, and Breyer.
5) Qualified Immunity- Qualified Immunity is the idea that certain individuals deserve “qualified immunity” from litigation as long as they are doing what they legitimately consider to be an enforcement of the law and their actions can be considered reasonable. I think the one issue that could swing this case in favor of Principal Morse is Fredrick’s search for compensation. Chief Justice Roberts seems concerned about the chilling effect that would certainly arise from precedent that allows for school officials to be forced to personally pay for reasonable actions. The Court doesn’t give much time to the issue of qualified immunity, it seems like this point is a given.
6) Deference to Educators- Starr also argues that a lot of these arguments come down to the split-second decision of educators in the real world. Principal Morse could have reasonably believed that Fredrick’s banner would be disruptive and meant to advocate breaking the law. The idea of deference to educators is tied very closely to the idea that educators shouldn’t have to pay for their actions when they are considered reasonable.
7) Content Neutrality- During Mertz’s oral arguments, the Court talks extensively about content neutrality. Mertz argues that schools must maintain content neutral rules regarding free speech, ie. if a kid can say that drugs are for idiots the school must allow a kid to say that all the cool kids are doing drugs. I tend to disagree with that idea (and so does Justie Scalia.) Scalia says that schools are supposed to be places where we instill good moral values in our kids, and pot is, by some standards, not one of the things we want our kids to be doing.
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It looks like Justice Scalia rejects the notion that Fredrick’s speech was political. He defends Starr when Justice Souter starts cornering him with a very narrow (and particularly incriminating) hypothetical scenario. It looks like Scalia is drawing a distinction between speech which calls for a change in the laws and speech which incites unlawful behavior.
At one point in the oral arguments (page 13 for my edition) an interesting dialogue takes place between Justice Scalia and Mr. Starr. Justice Scalia says that he is willing to rule very simply on this case, holding that students may not call for breaking the law in school. Starr says that type of restriction could be too stifling and he lists the Dr. Martin Luther King, Jr and civil disobedience as some of the things that would be restricted by such a ruling.
Justice Scalia goes off the proverbial deep-end during his dialogue with Mr. Mertz, the advocate for Fredrick. Scalia questions whether or not a school has to put up with a viewpoint that is ‘undermining’ the school’s legitimate viewpoint. Mertz says that a school must put up with a viewpoint countering its own so long as that viewpoint does not interfere with the school’s right to teach its own. Justice Kennedy counters with a silly hypothetical about a badge that says ‘Rape Is Fun.’ Mertz obviously deflects this hypothetical as speech that is subject to review under a totally different section of First Amendment jurisprudence as hate speech and speech advocating violence. Scalia doesn’t seem to get the difference.
Justice Scalia suggests that there are two main types of ‘disruption’ in this case. The first is the inability to teach in a classroom, the other is the undermining of an educational mission. He suggests that we use the word ‘undermining’ with reference to the second class of disruption. Mertz rejects the pejorative term and says that we should call it ‘allowing competing viewpoints.’ Justice Scalia then presents the most absurd hypothetical that I have ever heard in my life. This post is already getting too long, so I’ll just tell you to read page 40 of the Oral Arguments. Total Madness.
Chief Justice Roberts is concerned about how broadly we should read Tinker. He finds it unnecessary to adhere to Tinker in a classroom setting where the teacher’s agenda outweighs the student’s agenda. I suspect the Chief will rule with the Principal.
Justice Souter is going to come down on the side of Fredrick. It looks like he feels that any possible ‘disruption’ needs to be taken in context.
Justice Breyer knows that this kid was making a joke. He will rule in favor of Fredrick.
I have no idea how I would rule on this case. Actually, in writing this post I actually wrote one opinion, then wrote the opposite one because I thought I was wrong the first time. I found an old copy of the first draft. Here they are:
My belief is that from a free speech perspective, Fredrick was not protected by the First Amendment. It cannot be reasonably argued that Fredrick created a physical disruption to the school but his message was ultimately contradictory to the ‘educational mission’ of the school. For me it comes down to the fact that, as a recent high school graduate, if a student had put up a sign that said BONG HITS 4 JESUS during some sort of meeting outside, there would be no way to interpret that except as a blatant method of subverting the school’s mission to discourage drug use. Regardless of whether drug use is good or bad, that type of message does not have to be tolerated by school officials during an explicitly school function. A ruling that allows students to inject their own message into an event that has an explicit purpose would lead to dangerous precedent that would weaken school administrators to a dangerous level. If free speech issues weren’t enough, why should a principal be subject to litigation based on what a reasonable action to enforce a reasonable regulation? I would call this a slippery slope, but I’m concerned that calling it that would be a fatal understatement.
My belief is that from a free speech perspective, Fredrick was protected by the First Amendment. It cannot be reasonably argued that Fredrick created a physical disruption to the school and his message was not explicitly contradictory to the ‘educational mission’ of the school. The actual intent of the sign is unclear, and when such grey area is present, it is necessary that the Court fall on the side of First Amendment protection. The record is conflicting when it comes to the actual level of school intervention present during the assembly outside. The school cannot reasonably be allowed to censor all speech that runs contradictory to its broad educational message. Justice Scalia doesn’t find a difference between expressing pro-marijuana views and expressing pro-rape views, but there is one. Pro-marijuana views are unlikely to cause a serious disturbance in schools and I can see no reason why they would not receive political speech protection under Tinker. If Fredrick had not been a student, there is no doubt that he would have been able to hold that sign up in the exact same scenario. Why does he lose his rights just because he is a citizen and a student?
Whether Fredrick’s speech was protected by the First Amendment or not, he could very conceivably lose if the Court becomes too concerned about the qualified immunity issue.
My loose prediction: Roberts, Scalia, Thomas, Kennedy for the principal. Ginsburg, Alito, Stevens, Breyer, Souter for the kid. I could see Breyer swinging over the the principal based on the scope of the decision, but I don’t think Alito will follow suit.
UPDATE: If you’ve read this far down the post, I salute you. Also, if anyone wants an idea for a birthday present for me (October 1,) I’d love a 14-foot banner that says BONG HITS 4 JESUS. I’ll put it right beside my Constitution.