FIRST AMENDMENT: FREE SPEECH AND SCHOOL CONDUCT

This activity is based on the Supreme Court case Morse v. Frederick, 551 U.S. __, 127 S. Ct. 2618 (2007). The
case focuses on the First Amendment and students' rights to express their views when they are interpreted by
school authorities as promoting illegal drug use.
About These Resources

Analyze the facts and case summary for Morse v. Frederick.

Build arguments for both sides, starting with these talking points.
Use critical thinking skills and share reflections on the discussion questions.
How to Use These Resources

This activity is a modified Oxford style debate.

1. To get started, have participants read the Morse v. Frederick facts and case summary.

2. Assign student attorneys to the issues listed in the talking points. They are suggested points– not a script–
for the debate. Student attorneys are encouraged to add their own arguments.

3. All other students are jurors who deliberate (and may refer to these talking points) during the open floor
debate. They debate among themselves in the large group or smaller groups and come to a verdict after the
attorneys present closing arguments.
FACTS AND CASE SUMMARY: MORSE V. FREDERICK

Facts and case summary for Morse v. Frederick, 551 U.S. __, 127 S. Ct. 2618 (2007)
School authorities do not violate the First Amendment when they stop students from expressing views that may
be interpreted as promoting illegal drug use.

FACTS Joseph Frederick, a senior at Juneau-Douglas High School, unfurled a banner saying
"Bong Hits 4 Jesus" during the Olympic Torch Relay through Juneau, Alaska on January
24, 2002. Frederick's attendance at the event was part of a school-supervised activity.
The school's principal, Deborah Morse, told Frederick to put away the banner, as she
was concerned it could be interpreted as advocating illegal drug activity. After Frederick
refused to comply, she took the banner from him. Frederick originally was suspended
from school for 10 days for violating school policy, which forbids advocating the use of
illegal drugs.

PROCEDURE The U.S. District Court for the District of Alaska ruled for Morse, saying that Frederick's
action was not protected by the First Amendment. The U.S. Court of Appeals for the
Ninth Circuit reversed and held that Frederick's banner was constitutionally protected.
The U.S. Supreme Court granted certiorari.

ISSUES Whether a principal violates the Free Speech Clause of the First Amendment by
restricting speech at a school-supervised event when the speech is reasonably viewed
as promoting illegal drug use.

RULING No.

REASONING In Tinker v. Des Moines (1969), the Court stated that students do not "shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker
held that the wearing of armbands by students to protest the Vietnam War was
constitutionally protected speech because it was political speech. Political speech is at
the heart of the First Amendment and, thus, can only be prohibited if it "substantially
disrupts" the educational process.
On the other hand, the Court noted in Bethel v. Fraser, 478 U.S. 675, 682 (1986) that
"the constitutional rights of students at public school are not automatically, coextensive
with the rights of adults." The rights of students are applied "in light of the special
characteristics of the school environment," according to the U.S. Supreme Court in
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266 (1988).
In the present case, the majority acknowledged that the Constitution affords lesser
protections to certain types of student speech at school or school-supervised events.
Finding that the message Frederick displayed was by his own admission not political in
nature, as was the case in Tinker, the Court said the phrase "Bong Hits 4 Jesus"
reasonably could be viewed as promoting illegal drug use. As such, the state had an
"important" if not "compelling" interest in prohibiting/punishing student speech that
reasonably could be viewed as promoting illegal drug use. The Court, therefore, held that
schools may "take steps to safeguard those entrusted to their care from speech that can
reasonably be regarded as encouraging illegal drug use" without fear of violating a
student's First Amendment rights.

CONCURRENCES Justice Thomas

Justice Clarence Thomas concurred with the majority, but argued that, instead of making
exceptions to the holding in Tinker, Tinker should be overturned. Citing various scholarly
 sources on the history of public education, Justice Thomas argued that the First
Amendment was never meant to protect student speech in public schools.
Justices Alito and Kennedy
Justices Alito and Kennedy concurred with the majority, but were careful to note that the
majority's decision was at the outer parameters of constitutionally protected behavior.
These justices were concerned that the majority's decision permitting the suppression of
speech promoting illegal drug use could be used to punish those advocating
constitutionally permissible, but unpopular, political ideas, e.g., legalizing medicinal
marijuana use.

CONCURRENCE Justice Breyer

and DISSENT
Justice Stephen Breyer argued that the majority did not need to decide this case on its
merits, but could have decided it on the basis of the doctrine of "qualified immunity."
Qualified immunity prevents government officials, such as a school principal, from being
sued for actions taken in their official capacities. This protection is in place as long as
the legality of the conduct is open to debate. Since Justice Breyer argued that it was not
clear whether Frederick's speech was constitutionally protected, Morse was entitled to
qualified immunity. This decision would demonstrate judicial restraint, i.e., not having a
court decide a larger issue if deciding a smaller issue could dispose of the case.
Under current Supreme Court precedent, issues of qualified immunity cannot be decided
unless a Court first determines that a constitutional violation occurred. Justice Breyer
took the position that this precedent should be overturned. Since the majority decided
that no constitutional violation occurred, it did not address the issue of qualified immunity.

DISSENT Justice Stevens

Justice John Paul Stevens took the position that the school's interest in protecting
students from speech that can be reasonably regarded as promoting drug use does not
justify Frederick's punishment for his attempt to make an ambiguous statement simply
because it refers to drugs. Justice Stevens made several points in his dissent. First, he
argued that prohibiting speech because it advocates illegal drug use, unless it is likely to
provoke the harm sought to be avoided by the government, violates the First Amendment
because it impermissibly discriminates based upon content. Second, even if the school
had a compelling interest to prohibit such speech, Frederick's banner was so vague that
a reasonable person could not assume that it advocated illegal drug use. Finally, the
dissent took issue with the majority's justification that the speech could "reasonably be
perceived as promoting drug use" because the constitutionality of speech should not
depend on the perceptions of third parties.
TALKING POINTS

Question:
Do school authorities violate the Free Speech Clause of the First Amendment by restricting student speech at a
school-supervised event when the speech may be viewed as promoting illegal drug use?

Morse Frederick

1. Do school officials have the authority to restrict student speech that they perceive as harmful to
other students?

Affirmative. Yes. Negative. No.

Although students do not “shed their constitutional Students do not “shed their constitutional rights to
rights to freedom of speech or expression at the freedom of speech or expression at the schoolhouse
schoolhouse gate,” school administrators must have gate.” Here, a student was punished only because his
the ability to restrict speech that is harmful to other message was deemed unpopular/controversial by school
students, in this instance promoting illegal drug use. principal Morse. The banner did not disrupt the school-
Frederick displayed his banner at a school event. It related event. The principal’s actions were based solely
was the duty of the principal to take action against on opposition to the content of the banner, and the First
him. Amendment protects against such acts of censorship.

2. If the banner could be interpreted as promoting illegal drug use, do schools have a compelling
interest in preventing such messages at school-supervised events?

Affirmative. Yes. Negative. No.

Illegal drug use can have serious adverse The “Bong Hits 4 Jesus” banner did not explicitly promote
consequences on users, including death. The school illegal drug use. It is a nonsensical phrase. Any
has a responsibility to discourage the use of illegal interpretations are a result of the viewer’s perceptions.
drugs. Frederick was advocating illegal drug use. The Even if the banner did have a pro-drug message,
state has a compelling interest in preventing such Frederick, was not engaging in illegal conduct. The state
messages. Even if Frederick’s message were may not censor his message simply because it is
nonsensical, it could easily be interpreted as unpopular. Afterall, how could one advocate for change in
promoting illegal drug use – “bong hits.” Thus, the the law if one cannot advocate for making something
school’s compelling interests remain. legal that currently is illegal?

3. Should student speech be restricted if it can be interpreted as a distasteful, school-endorsed

message?

Affirmative. Yes. Negative. No.

Perceptions by others can have a role to play in Speech should not be restricted simply because it can be
restricting speech. The term “bong hits” is usually misinterpreted by others. If this is the criteria for
associated with illegal drug use and schools have a restricting speech, then all speech can potentially be
compelling interest in preventing a student from restricted since speech can easily be misconstrued. This
advocating illegal drug use. The fact that Frederick interpretation would drastically undermine the protections
displayed the banner at a school event gives the of the First Amendment. No third party would seriously
school reason to remove it so that no one would think think that the school was endorsing Frederick’s
that the school either explicitly or implicitly endorsed message.
its message.

4. Does the First Amendment only protect the expression of coherent or rational thoughts?
Affirmative. Yes. Negative. No.
The First Amendment’s protection of freedom of Nonsensical speech is protected by the First
speech is meant to promote the spread of ideas. As Amendment. The principal does not have the right to
such, it only protects coherent or rational thoughts. determine what speech is or is not protected by the First
Nonsensical speech is not protected by the First Amendment. Under most circumstances, the First
Amendment or, at least, is given less protection than Amendment gives individuals the right to say whatever
rational speech. Even if Frederick’s speech were they wish so long as they are not harming others or
simply nonsensical, Morse could have restricted it interfering with their rights. No one was harmed by
without violating the First Amendment. Frederick’s actions.

5. Should school officials be immune from legal liability when they take actions in good faith to protect
other students from what they consider offensive speech?

Affirmative. Yes. Negative. No.

School principals have to act in real time and respond Those who violate the constitutional rights of others, even
to events as they arise. A principal is not a inadvertently, must not be immune from the
constitutional lawyer and does not know the nuances consequences of their actions. Such violations restrict
of the First Amendment. Even if Frederick’s speech constitutional rights and violators must be held
were protected by the First Amendment, when a accountable. Therefore, Morse should be held
principal acts in good faith to protect other students, accountable for violating Frederick’s rights and
the principal should be given immunity from civil suits compensate him as the law demands.
for such actions.
DISCUSSION QUESTIONS

1. Students' Rights. Should students be entitled to the same rights as adults while on school property or
attending school-supervised events? What arguments can be made for limiting students' rights? What arguments
can be made for not limiting students' rights?
2. The Fourth Amendment. In the majority opinion, Chief Justice Roberts noted that schools can limit more than
just a student's First Amendment rights. For instance, random drug tests of student athletes are constitutionally
permissible. Is there any difference between limiting a student's rights to freedom of speech versus other rights,
e.g., unreasonable searches and seizures?
3. Political Speech. Who determines what constitutes political speech? What separates advocating illegal drug
use (prohibited) from advocating a change in the law to legalize illegal drug use (permitted)? Does the school have
an "important," if not "compelling" interest in combating the use of illegal drugs. If so, should this interest override
First Amendment concerns?
4. Nonsensical Speech. The dissent argued that Frederick's speech was "nonsensical." What type of speech
does the First Amendment protect? Should "nonsensical" speech be included, or should it be excluded (like
fighting words, obscenity, etc.)? Who decides what constitutes "nonsensical" speech?
5. The Principal's Actions. Both the majority and the dissent agreed that the principal had to make a split-second
decision in this case, and therefore should be granted "qualified immunity" from suit for her actions. Do you think
that government officials, including principals, should be granted immunity for violating constitutional rights if, in
their judgment, a situation calls for immediate action? Give some examples of such situations. Using your
examples, what arguments can you make for and against this protection?