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 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.
…[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….
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