Morse v. Frederick, 551 U.S. 393; 127 S. Ct. 2618; 168 L. Ed. 2d 290 (2007)

Facts—Joseph Frederick, a high school senior, was suspended after displaying a fourteen-foot banner saying “BONG HITS 4 JESUS” at an Olympic Torch Relay that passed by his school. The District Court upheld the principal’s action, but the Ninth Circuit found that it violated the First Amendment.

Question—Did Frederick have a First Amendment right to display his banner? If so, was the principal liable for damages?

Decision—Answering the first question in the negative, the Court did not address the second.

Reasons—C.J. Roberts (5 ½ to 3 ½). This case clearly involves school speech, but the message on Frederick’s banner is cryptic. The principal could reasonably suppress the banner on the basis that it advocated illegal drug use. Tinker v. Des Moines established that students and teachers do not lose all First Amendment rights, but subsequent cases establish that these rights are not coextensive with those of adults, and Tinker’s focus on “substantial disruption” is not the exclusive consideration, as Bethel v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988) established. Drug abuse is especially rampant and dangerous among school students and is furthered by peer pressure, which school authorities have the right to resist.

J. Thomas, concurring. Tinker was “without basis in the Constitution” and should be abandoned. Tinker did not reflect the original understanding that schools were designed to promote discipline and to serve in place of parents (in loco parentis). Tinker further “conflicted with the traditional understanding of the judiciary’s [limited] role in relation to public schooling.” Tinker created “a new and malleable standard” that simply creates confusion.

J. Alito, concurring. The decision means no more than that a school may regulate advocacy of illegal drug use but should not restrict speech questioning the war on drugs.

J. Breyer, concurring. The Court should simply decide that the principal has qualified immunity from suit under the circumstances of this case and say no more.

J. Stevens, dissenting. The principal should be given qualified immunity, but “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.” The banner was simply nonsensical, and attempts to carve out an exception limiting speech advocating drug use is a form of prohibited viewpoint discrimination. “Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.”