Transcript Morse v. Frederick (2007)

Student Speech and the First
Amendment
Does the First Amendment allow public schools to
prohibit students from displaying messages
promoting the use of illegal drugs at schoolsupervised events?
First Amendment
 A cornerstone principle of the American republic is the
concept of individual liberties like “freedom of speech”.
 There has always been a delicate balance between a citizens
constitutional right and the governments duty to provide a
safe and secure living environment.
 Often times, these two entities clash.
 It is the purpose of the judicial branch to settle these
disputes.
Freedom of Speech
 Freedom of speech is not limited to spoken words alone, but
includes several types of speech.
 “Pure speech” involves only spoken words, such as debates
and public meetings, and has the greatest protection under
the First Amendment.
 “Speech-plus” is speech combined with action, such as
demonstrations and picketing. The speech portion of speechplus is generally protected, but the action portion may be
regulated.
Freedom of Speech
 “Symbolic speech” is action that conveys a message in itself,
without spoken words, and is sometimes known as
“expressive conduct”.
 Some examples of symbolic speech are wearing black arm
bands to school to protest the Vietnam War or standing on
the steps of a state capitol and burning an American flag.
Tinker v. Des Moines (1969)
 Several high school students were suspended for wearing black
armbands in protest of the Vietnam War.
 In a 7-2 decision the Court ruled that school officials had overstepped
their authority and violated the students First Amendment free speech
rights.
 "It can be hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse
gate...."
Tinker v. Des Moines (1969)
 However, the court added:
 "it has repeatedly affirmed the comprehensive authority of the States
and of school authorities, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools.“
 The fact that the student's conduct did not produce any
substantial disruption of normal school activities was an
important factor in the Court's decision.
Bethel v. Fraser (1986)
 Applying this “disruption” standard established in Tinker, the
Court in a 7-2 decision upheld the suspension of Matthew
Fraser, a 17-year-old senior at Bethel High School in Tacoma,
Washington, who gave a school speech containing sexual
innuendos.
Bethel v. Fraser (1986)
 Speech given by Mathew Fraser:
 "I know a man who is firm - he's firm in his pants, he's firm in his
shirt, his character is firm - but most [of] all, his belief in you the
students of Bethel, is firm. Jeff Kuhlman is a man who takes his point
and pounds it in. If necessary, he'll take an issue and nail it to the
wall. He doesn't attack things in spurts - he drives hard, pushing and
pushing until finally - he succeeds. Jeff is a man who will go to the
very end - even the climax, for each and every one of you. So please
vote for Jeff Kuhlman, as he'll never come [long pause] between us
and the best our school can be. He is firm enough to give it
everything."
Bethel v. Fraser (1986)
 The Court said "it is a highly appropriate function of public
school education to prohibit the use of vulgar and offensive terms in
public discourse."
Hazelwood v. Kuhlmeier (1988)
 The Spectrum, the school-sponsored newspaper of
Hazelwood East High School, was written and edited by
students.
 In May 1983, the school principal received the pages proofs
for the May 13 issue. The principal found two of the articles
(teen pregnancy & divorce) in the issue to be inappropriate,
and ordered that the pages on which the articles appeared be
withheld from publication.
Hazelwood v. Kuhlmeier (1988)
 In a 5-3 decision the Court argued that schools must be able
to set high standards for student speech disseminated under
their auspices, and that schools retained the right to refuse to
sponsor speech that was "inconsistent with 'the shared values
of a civilized social order.'"
 Educators did not offend the First Amendment by exercising
editorial control over the content of student speech so long
as their actions were "reasonably related to legitimate
pedagogical (educational) concerns." The actions of the
principal, the Court held, met this test.
Morse v. Frederick (2007)
Joseph Frederick- 18
Senior at Juneau-Douglas High School
Morse v. Frederick (2007)
 In 2002, high school principal Deborah Morse suspended 18-
year-old Joseph Frederick after he displayed a banner reading
"BONG HiTS 4 JESUS" across the street from his school
during the 2002 Olympic Torch Relay Parade.
Morse v. Frederick (2007)
 Frederick sued, claiming his constitutional rights to free
speech were violated.
 His suit was dismissed by the federal district court, but on
appeal, the Ninth Circuit reversed, concluding that
Frederick's speech rights were violated.
 The school district decided to appeal the Ninth Circuit
decision and the Supreme Court accepted the case for
review.
Morse v. Frederick (2007)
 Ken Starr, the lead attorney for the school district, made a
point during oral argument that this case was really about
drug use.
 This was a banner that was promoting drug use, a message
that was inconsistent with the schools anti-drug policy and
disruptive of the schools educational mission.
Morse v. Frederick (2007)
 On the other hand, Justice Kennedy asked the question “is this
really just about drug use?”
 Justice’s Souter and Ginsburg made the point that the message was
really just nonsensical and a way for Mr. Frederick to get
attention.
 Furthermore, they wondered whether there was an actual
disruption, pointing out that the message was displayed on a public
sidewalk, across from the school, with kids throwing snowballs,
and people waiting for the TV cameras to show up.
You Be The Judge…
 What do you think and how would you rule if you were a
justice on the Supreme Court during this case?
 Answer the preceding question. Your answer must be a
minimum of 7 sentences… Be sure to explain your reasoning
and why you are deciding the way you are and be prepared to
defend your points when called on…
Conclusion…
 The Court reversed the Ninth Circuit by a 5-4 vote, ruling that
school officials can prohibit students from displaying messages that
promote illegal drug use.
 Chief Justice John Roberts's majority opinion held that although
students do have some right to political speech even while in
school, this right does not extend to pro-drug messages that may
undermine the school's important mission to discourage drug use.
 The majority held that Frederick's message, though "cryptic," was
reasonably interpreted as promoting marijuana use - equivalent to
"[Take] bong hits" or "bong hits [are a good thing]."
Conclusion…
 In ruling for Morse, the Court affirmed that the speech rights of
public school students are not as extensive as those adults
normally enjoy, and that the highly protective standard set by
Tinker would not always be applied.
 In concurring opinions, Justice Thomas expressed his view that the
right to free speech does not apply to students and his wish to see
Tinker overturned altogether, while Justice Alito stressed that the
decision applied only to pro-drug messages and not to broader
political speech.
 The dissent argued that the majority opinion was "[...] deaf to the
constitutional imperative to permit unfettered debate, even among
high-school students [...]."