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learning.now: at the crossroads of Internet culture & education with host Andy Carvin

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June252007

Supreme Court Rules Against Student in “Bong Hits 4 Jesus” Case

In the first major Supreme Court decision on student free speech in almost a generation, the Court ruled against a student who was suspended for displaying a banner with drug-related messaging just off the school campus. What does the ruling mean for students punished for online activities that take place off-campus?

This morning, the U.S. Supreme Court issued a 5-4 ruling in the case known as Morse v. Frederick. As I wrote last March, the case involved a Juneau, Alaska high school student who was suspended in January 2002 because of a banner he displayed across from the school campus. The day the controversy took place, the Olympic torch relay was taking place in town, and the school decided to allow students to go outside and watch the torch runners. Student Joseph Frederick and some of his friends decided to play a prank as the torch relay took place. As local media were covering the relay, Frederick and his friends unfurled a large banner with the words “Bong Hits 4 Jesus,” hoping it would be picked up during the TV coverage.

School principal Deborah Morse reacted quickly, tearing the banner away from Frederick and suspended him. Frederick later sued Morse and the school, arguing that Morse had violated his right to free speech, since he was expressing himself off-campus.

The case wound its way up the judicial system until it reached the Supreme Court last autumn. In today’s divided 5-4 ruling, Chief Justice John Roberts wrote for the majority, concluding that the principal was within her rights to suspend Frederick.

The chief justice’s reasoning was based in part on two assumptions. First, he disagreed with Frederick’s assertion that the event was not educational in nature simply because the banner was displayed off-campus.

The event in question occurred during normal school hours and was sanctioned by [Principal] 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.

Second, the majority concluded that a school may limit student free speech when that speech attempts to undermine the school’s anti-drug policies.

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…. …The Court agrees with [Principal] 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.

Taking these two factors into account, Chief Justice Roberts offered this summary: “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.”

Interestingly, Chief Justice Roberts did not write for the full majority; with two justices offering their own concurring opinions. Justice Thomas wrote a harsher assessment regarding student free speech rights, or the lack thereof:

The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, [t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem….

…In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools….


…[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order….

…I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t-a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.

Justice Samuel Samuel Alito offered his own concurring perspective:

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….


…The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s educational mission…. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.

Justice Breyer took a very different tack, falling somewhere between a concurring and dissenting opinion, raising various concerns about the case, but essentially saying the Supreme Court should stay out of this particular debate:

This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more….

… 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.

The remaining three justices, represented by Justice Stevens, dissented against the ruling:

[T]he school’s interest in protecting its students from exposure to speech, reasonably regarded as promoting illegal drug use… cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more….


…In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding-indeed, lauding-a school’s decision to punish Frederick for expressing a view with which it disagreed.

The big question those of us in the edtech world are bound to ask, of course, is how this ruling will affect cases in which schools have been disciplined for online activities that take place off-campus. In recent years, many students have been disciplined for online behavior, including content posted to blogs, personal websites and social networks. Some schools have been forced to back down and even pay damages because they disciplined students for activities that took play away from school, without affecting the educational process - both barometers for student free speech rights.

My guess is that the results, like the ruling itself, will be mixed. Some schools will be emboldened by the majority claim in which schools can discipline students for free speech when it comes to drug use. Some students around the country who have been disciplined for online activities were punished because of drug references on social networks and the like. On the other hand, the ruling also concluded that this particular incident involved a school-sanctioned event. Though it took place off-campus, the event had the school’s blessing, and thus the student could be held accountable for his behavior.

But can student online activities from home be deemed “school-sanctioned”? The irony is that the answer might be yes - for those schools that decide to use social networking sites in the classroom. Many schools, of course, filter out social networks, deeming them uneducational and inappropriate for classroom access. For those students attending schools where social networks are filtered, they could probably argue in an ensuing legal case that their online activities, even if drug-related, can’t be considered school sanctioned, since the school refuses to condone social network access on campus. On the other hand, if a school allows access to certain social networks and a student hypothetically posted drug-related content on his or her personal online profile, the school might argue that using the social network is indeed school-sanctioned and thus open to disciplinary action, even if the content is posted off-campus.

Ironic, isn’t it? And more than a wee bit complex, to say the least. Complicating matters further is that the court’s opinion wasn’t cut and dry: no less than five different judges offered written opinions. Court rulings with this much judisprudential chaos don’t always get the same respect that majority opinions written by a single author get, since they show the justices have varying perspectives and can’t come up with a unified legal argument.

Of course, all of this remains somewhat academic until some student somewhere gets punished after the ruling and decides to sue. Based on the language of the ruling, there’s text in it that could be used by either the student or the school to support their perspective. Until that happens, every school should take a close look at the ruling before making any disciplinary decision regarding student free speech, whether offline or online. And students should give it a read as well. -andy

Filed under : People, Policy, Social Networking

Responses

Breyer’s concerns go straight to the heart of this issue. That’s why they’re glossed over.

A true democracy can only be as strong as its citizens. Instead of restricting students to what school administrators believe is “correct” speech, schools should be encouraging students to understand their rights as a citizen and encouraging them to use said rights.

A high school diploma is not a prerequisite to obtaining your rights as a citizen.

Clarence Thomas finally hits a home run!

What I found entirely missing in this analysis (and perhaps in the Supreme Court arguments as well) was any mention of “parody” or “satire” because it seemed ridiculously obvious to me that the phrase “Bong Hits 4 Jesus” was meant as satirical commentary—-on religion or drug laws, I’m not entirely sure.

As usual, the Supreme Court justices show how far out of touch they are with the way the average citizen lives and thinks. Most of the rest of us have a sense of humor and can appreciate a good joke…even when it baffles us just a little.

More disturbingly, this entire episode underlines the authoritarianism currently being promoted by education officials in schools throughout the country. Apparently, they feel that their mandate is to prepare students to be obedient drones in a police state.

The one common thread in all of this is that the authoritarians in the high courts and in the high schools are unable to tolerate or appreciate ambiguous statements. “Bong Hits 4 Jesus” MUST be a “pro-drug” statement, after all given the “paucity of alternative interpretations.”

In short—-none of these people—-from the school principal to Clarence Thomas can take a joke. Quite possibly because they ARE jokes. And yet….NOT funny.

Andy, I think you know that I’m a school law professor…

You said that ‘if a school allows access to certain social networks and a student hypothetically posted drug-related content on his or her personal online profile, the school might argue that using the social network is indeed school-sanctioned and thus open to disciplinary action, even if the content is posted off-campus.’

Honestly, I don’t think courts are going to read ‘school sanctioned’ the way you are. ‘School sanctioned’ essentially means ‘school sponsored’ or ‘a school event’ (like a field trip or a band trip or a week abroad), events that have the primary locus / sponsorship of the school.

Now, I admit I could be wrong. Only time will tell, obviously. But I think this an overbroad interpetation of the phrase ‘school sanctioned.’

We live in interesting times!

What an affront to American values — the first amendment apparently means nothing in the “War On” era. War on Drugs. War on Terror. War on Reason. Might as well just pass the bong and take a few hits because there’s no point in engaging these right wing nut jobs. They control everything and comprehend nothing.

The phrase “Bong Hits 4 Jesus” was not meant to be a parody or satirical; it was contrived to get a response from the principal. The First Amendment “intent” in this case was not for a genuine purpose or cause. Fortunately, the majority of the justices understood that.

They still haven’t gonged the song, and I’m going to let all of you download it for free now before it becomes a “hit”:

Bong Hits 4 Jesus
(the song)
Dr BLT
words and music by Dr BLT © 2007
http://www.drblt.net/music/bongHITS4.mp3

Blog and roll!

Reading the actual oppinions there is no majority on anything. If Stevens had been willing to abandon some of his pro-drug rhetoric, it appears he could have easily built a majority. calling Roberts oppinion a majority oppinion is extremely ambitious, atleast two of its signers issued a concurring oppinion that could easily be labeled a dissent. There is a unanimous oppinion extending qualified immunity to the principle involved. That is about the only thing certain that can be gleaned from this case. While the Roberts oppinion can be viewed as a substatnitial extension of schools authority to regulate speech and to narrow tinker, the Alito, Kennedy concurrance backs away from almost everything in the Roberts oppinion. Thomas’s concurance makes one wonder what he was smoking when he wrote it. A pre 20th century view of in locco parentis would be the voluntary awarding of authority from a parent to a guardian. Thomas’s concurrance is a grant of the 17th century parents virtual ownership of children to public schools without parental consent. It also ignores the fact that Fredrick was a legally an adult. Steven’s dissent is scathing, and he was able to get Souter and Ginsberg to sign on. Begging the question whether he could have gotten Alito, Kennedy, and Breyer to sign on if he had been willing to eliminate some of the pro-drug rhetoric.
If a school administrator wishes to draw any meaning from this, all that is readily apparent is that there is a 9-0 majority supporting qualified immunity for controversial speech issues, and the courts have always had a great deal of difficulty finding principles when kids were involved, adding even oblique references to drugs makes them even more schitzophrenic.

what is up with our surpreme court??? if the kid was off school grounds…he could basically be any body from any where!! if it was not on school grounds they [school] should not be allowed to censor or expell this kid!!!!!! what has become of this country?? we all know the mindset of the religious extremeists/ drug culture in this country…but as long as they are not killing people in the streets and slandering someone they have as much right to say what they believe as much as …ME AND YOU…WE’LD BETTER BEWARE!! WE AS ORDINARY AMERICANS WILL BE AND ARE NEXT ON THEIR LIST!!!

It seems everyone is arguing the wrong issue: was it a satire etc. If free speech can be banished because it advocates something illegal, then such historical issues as ‘no taxation without representation’ or ‘free the slaves’ or ‘burn your draft card’ could have been equally silenced. All advocated violating laws that citizens believed to be unjust. What body of law are these criminals on the Supreme Court following?

The school is probably right, but the punishment was too severe.

We believe that the student should have ruled, but understand that the bigger picture of the possibility of condoning drugs needed to reign in this case.
Pink group

The principal was right because it was a school function!

The fact that the decision by the Supreme Court was a 5-4 ruling shows that this was/is not a simple case. Freedom of speech is freedom of speech! Where will we go from here if something as simple as “Bong HiTS 4 Jesus” can’t be said?! The principal had no right to take the banner and no right to suspend the student. In all fairness though, I do not think that Frederick should have personally sued Morse….instead the school or school district would have been more effective. I think the Supreme Courts ruling has just opened a very bad door which could have major effects on students across the country from here on out.

I need info to build a case for political and social action of students in the classroom. I don’t get scrutinized for social action as much because no one is going to usually complain against kids helping world hunger or stopping bullying, for instance; however, I am currently under fire for allowing kids to do a more overtly partisan project against the creation of the Pebble Mine, a large gold mine deposit in Alaska being proposed and financed by Northern Dynasty. The kids are writing letters to the editor (for publication, not imaginary letters), planning a march, painting a giant sign, etc… In this particular project, the kids are taking a position and taking action toward making a difference (civic participation), which is offending many people’s sense of what should be done in the classroom, crossing the line, of sorts, since these are not debates or a mock trial, but actually taking a side and pursuing it. I need precedent to support my work. Can anyone help?

I totaly agree with this case. I think that the wellfare of the community overules the right of an individual.

The Supreme Court made a terrible ruling and hopefully another case of similar circumstances will arise so they can make clear what precedent the Supreme Court wishes to set on this manner, for the current one is unacceptable with our constitutional rights. Student’s right to free expression is more important than a school’s right to maintain order. The 1st amendment is fundamental and supersedes the schools immediate charge.

I think that while the lawsuit was foolish, the principal was in the wrong. Free speech means being able to say anything anywhere. The content of the speech is totally irrelevant. In addition, the claim that the banner promoted illegal drug use is a non-issue. Marijuana should not be illegal, therefore any law that makes it illegal is unjust. An unjust law has no authority, therefore there was nothing wrong with the banner. If it were me in the student’s shoes, I would not have complied with the suspension and continued to show up at school, if only to spite the principal. After all, the administration had no right to punish him, so why should he go along with it? Even if the banner was on school grounds, she would still have neither right nor authority to take it from the student.

I’m doing this as a law project on the Supreme Court cases, and I chose this one, (I’m in 7th grade; I’m 12.) and so I found it in some book under “Student Free Expression Rights”, and apparently, someone’s wrongs is going to get me an A in law.

:)
But i think it’s a really good case and i found some good pictures to go with it. like the “Bong Hits 4 Jesus” picture of the kids across the street was really great.


So thanks…. sort of.

Before this got rolling in the courts, Joe Frederick offered the school district a deal: hold an assembly where members from the ACLU and experts of the district’s choosing could talk about and debate student rights. This whole incident could have been used as a powerful learning experience for the students of Juneau-Douglas High School. The district refused the offer.

Anyone who reads the transcripts of the Supreme Court hearing on this case can see that the Justices were not only wrong, but lazy.

I have but one thing to say of this high court decision: William Brennan must be rolling in his grave.

JP, even when the original intent might have been non-serious, it still should apply to the first amendment in my opinion.
I agree with James A. Kenny that the whole satire-angle of the banner was overlooked, even by the three dissenters. However, Stevens’ opinion DOES mention (and extensively) that it’s not a given fact that the phrase ‘Bong hits 4 Jesus’ is clearly meant as a way to propagate the use of marihuana. What I miss in the opinions though is a thinking experiment about what principal Morse would have done if the banner would have said for instance ‘Bunnies 4 Buddha’. Because that’s the whole point to me — and my opinion is broadly even with Stevens’: it doesn’t seem to matter to the principal that Frederick makes a banner, but that marihuana is mentioned. However, it’s not up (or it shouldn’t be up) to other people what matters in free speech. Not even when you are a student. Further, as Stevens writes, in the famous Tinker v Des Moines case the students were punished for being against a (then still popular) war. But that war became later less popular.
If principal Morse would be really principled in denying students their nonsensical opinions, she should also have forbidden ‘Bunnies 4 Buddha’, but I highly doubt that she would have done that.
And I haven’t even mentioned the fact that Frederick was not on school grounds and of an adult age. In short: I find the majority ruling a dangerous short-sighted ruling, that not even seems to follow jurisprudence.
Oh, I’m not a teacher, and English is not my maternal language, so excuses for language faults.

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