Morse v Frederick

We all know that one person. That person who pushes the boundaries of what’s acceptable and loves to engage in activity for shock value. In January of 2002, Joseph Frederick tested the limits of the protection that the First Amendment provides. He was a high school student who attempted to get on television with his “Bong Hits 4 Jesus” banner at a school-supervised event. Frederick achieved more fame than he initially thought when his case made its way to the Supreme Court and has appeared in textbooks ever since.

Morse v Frederick 2007

Morse v. Frederick was one of the most significant student speech cases to appear before the Supreme Court in decades. It was argued and decided in 2007, and the issue presented to the Court was: Does the First Amendment allow public schools to restrict students from displaying messages promoting illegal substances during an event sponsored by the school?

Morse v Frederick Summary

On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska. The historic occasion prompted school officials at Juneau-Douglas High School to release students from their regular class schedules to watch the Olympic Torch as it was carried by. There were about 1000 students standing outside the school; some of them were supervised by school officials.

Joseph Frederick, a high school senior, did not attend school that day. He did, however, make it in time to join his classmates on a public sidewalk across from the school to watch the Torch Relay. Frederick had bigger plans than just watching the Olympic Torch. Just as the television cameras panned by his group, Frederick and some friends unfurled a large banner that read, “Bong Hits 4 Jesus.” The message alludes to slang for smoking marijuana.

When Deborah Morse spotted the banner from across the street, she was not pleased. Believing that Frederick was advocating for illegal drug use, she ordered him to take down the banner. He refused, so she confiscated the banner.

Morse initially suspended Frederick for five days, but after he defiantly quoted Thomas Jefferson by saying,

she doubled his sentence and suspended him for ten days.

He challenged the actions of his school on the grounds that they vFig. 1, Frederick's Banner, Wikimedia Commonsiolated his First Amendment Freedom of Speech rights. Frederick lost first with the local school board, then in federal court. He appealed, and the US Court of Appeals for the Ninth Circuit reversed the decision of the lower courts and agreed with the 18-year-old student that his First Amendment rights had been infringed upon.

Principal Deborah Morse and the Juneau-Douglas School District appealed to the Supreme Court.

Morse v Frederick Arguments

Arguments for Deborah Morse:

• Frederick was at a school-sponsored event; therefore, the case is about student speech. Even though the students were not in the classroom, they were under school supervision, and it was during the school day.

• The case’s precedent is Bethel v. Fraser. In that case, student obscenity at a school assembly resulted in the student’s suspension. The Supreme Court upheld the actions of the school. In this case, Principal Morse disciplined Frederick for speech that advocated for using illegal substances. Discouraging drug use is integral to the school’s educational mission.

• Just like Hazelwood v. Kuhlmeier, the school administration has the right to censor student speech during a school-sponsored activity or event otherwise, it appears as though the school is endorsing the speech.

• Frederick’s actions were disruptive to the educational process.

Arguments for Frederick:

• The case does not involve student speech at school. Frederick didn’t go to school that day, and only portions of the student body were being supervised; thus, he should have the same First Amendment rights that adults have.

• Frederick’s speech was like the speech in Tinker v Des Moines. His speech was peaceful and didn’t interfere with education. The disruption occurred when the principal confiscated the banner.

• The message wasn’t like the precedent in Bethel. Frederick’s speech was not lewd or obscene. It was protected political speech about drug use.

• This case isn’t like Hazelwood v Kuhlmeier. The banner wasn't part of the school curriculum and took place off-campus at an Olympic activity. Common sense should lead one to understand the school didn’t endorse the banner.

Constitutional Amendment and Precedents

Fig. 2, Text of the 1st Amendment on the facade of the Newseum in Washington, DC - Wikimedia Commons

The Constitutional Provision central to the case of Morse v. Frederick is the First Amendment,

Tinker v. Des Moines

Tinker broadened student speech rights in the United States by making clear that students retain their rights as Americans when they are at school. The case established the test that in order for a school to restrict speech, it must prove to “materially and substantially interfere” with the educational process or with the rights of other students.

Bethel School District No. 403 v. Fraser

In 1986, Matthew Fraser delivered a speech filled with lewd commentary and innuendos in front of his student body. He was suspended for his behavior and sued. The Supreme Court sided with the school, setting the precedent that the First Amendment doesn’t prohibit school officials from disciplining students for indecent, offensive speech.

Hazelwood School District v. Kuhlmeier

In 1983, two students working for the school newspaper, The Spectrum, wrote two articles to which the principal objected. One was about teen pregnancy, and the other was about divorce. The students sued and lost in district court, then appealed to the U.S. Court of Appeals for the Eighth Circuit and won. The School District appealed that decision to the Supreme Court. The Supreme Court sided with the school district, ruling that the school administration has the right to censor student speech in school-sponsored activities such as newspaper and yearbook publications.

Morse v Frederick Ruling

The Supreme Court ruled 5-4 for Principal Morse. Chief Justice John Roberts delivered the majority opinion. He was joined in the majority by Justices Alito, Kennedy, Scalia, and Thomas. They concluded that Morse did not violate the First Amendment by taking down the pro-marijuana banner. The majority said that Frederick’s speech was student speech because participation in the Torch Relay was a school-sponsored event.

The Court relied heavily on the precedents set by earlier cases, Bethel v Fraser and Hazelwood v. Kuhlmeier, and underscored that public school students in school settings do not have the same rights as adults do. The fact that the banner advocated for illegal drug use reasonably allowed for the principal to confiscate it.

Dissenting Opinion Morse v Frederick

The dissenting Justices were Stevens, Ginsburg, and Souter. Justice Breyer filed a concurring opinion in judgment, but dissenting in part. They felt that the decision was damaging to the First Amendment. The dissenting justices felt that schools should not be allowed to punish students for speech with which the school disagreed. They believed that the decision would pave the way for viewpoint prejudice. Their opinion was the banner was just Frederick's way of trying to get on television.

The justices in the minority referenced the Tinker opinion in this quote:

They went on to give their opinion in Morse v. Frederick that:

The dissenters explained that no student would actually be persuaded to smoke marijuana just by seeing the banner, and that his speech didn’t cause educational disruption.

Morse v Frederick Impact

Even though the holding in Morse v. Frederick is narrow in that it explicitly said that public school administration had the right to punish student speech that advocated for illegal drug use, it has nonetheless been applied as a precedent in numerous instances where student speech has been deemed disruptive to the educational mission of school districts.

The original “Bong Hits 4 Jesus” banner hung for years in the Newseum in Washington, DC. It can now be seen at the First Amendment Museum in Augusta, Maine.