The Supreme Court Hears Oral Argument in the First Amendment Case in Which A High School Student Was Penalized for Unfurling a "Bong Hits 4 Jesus" Banner

By MARCI HAMILTON

Thursday, Mar. 22, 2007

On Monday, March 19, the United States Supreme Court heard oral argument in Morse v. Frederick, the case in which a student was suspended from school for unfurling a banner with the words "Bong Hits 4 Jesus" on an Olympic parade route. The route was across the street from his school; the incident occurred during the school day; and the student was standing with his fellow students at the time. He was not making either a political or a religious statement. Apparently, the phrase was borrowed from a bumper sticker and the student's goal was to get his picture in the newspaper. He obviously succeeded on the newspaper goal - for this case has gotten coverage nationwide -- but his First Amendment challenge seems to me to have less merit. (Readers should contrast Julie Hilden's two-part column on the case, written after it was decided by the Ninth Circuit, which reaches rather different conclusions.)

The U.S. Court of Appeals for the Ninth Circuit held that the student's speech was protected, and the principal was personally liable in the case, which was brought under a federal statute that allows awards of damages for violations of constitutional rights.

The problem with that decision, however, is that it exists in a land of little oxygen, far removed from the reality of high school, where if adults give students an inch to misbehave, they will take a mile, and where bids for attention like this one hardly need encouragement. One can only hope that the Supreme Court will offer a more realistic ruling, grounded in high-school realities.

Considering the Tinker v. Des Moines Precedent

The student would like to make this a test case for the continuing vitality of Tinker v. Des MoinesSchool Dist., the Supreme Court's decision upholding the right of students to wear black armbands in school in protest of the Vietnam War. There, the Court uttered the famous maxim that the Constitution does not cease at the schoolhouse gates. The key elements of Tinker were that the speech was plainly political, and made in a heated national political atmosphere; the school was exercising standardless discretion; and there was no showing that the passive wearing of the armband disrupted the school's educational mission.

The decision was correct, but it did not stand for the proposition that any utterance by a student deserves careful protection. Sometimes students say really dumb things that simply do not deserve constitutional protection. The "Bong Hits 4 Jesus" case is a prime example. Moreover, if the Supreme Court were to decide the case as the Ninth Circuit did, that would present serious problems for school administrators. Justice Breyer's words made the point clearly at oral argument:"It's pretty hard to run a school where kids go around at public events publicly making a joke out of drugs."

Today, a New York Times editorial argued that failing to protect young Frederick's sophomoric banner would lead to the slippery slope of the suppression of political speech. This is not a terribly careful reading of free speech precedents, though.

The First Amendment's free speech doctrine is highly reticulated. The Court typically looks at a host of factors to determine whether speech is protected, and to what degree. One of these factors is the inherent value of the speech (political, religious, pornographic, or, in this case, nonsense?) and the context within which the speech is uttered (public square, post office, public school, military base?). Those factors, taken together, determine the level of protection.

Here, in the "Bong Hits 4 Jesus" case, we have nonsense speech, uttered to grab attention, in a school context. Given these elements, the case in favor of justifying protection of the speech or sanctioning the principal is meager indeed. What is at stake here is simply a student's supposed right to utter a "joke," to use Justice Breyer's characterization.

School Event or Public Event? The Important Issue of the Context of the Student's Speech

One key issue in the case is whether the student was part of a school event, or part of a public event. If the former is the case, the school may regulate speech to keep it from disrupting the school's educational mission, under the rule the Supreme Court set down in Tinker. If the latter is the case, Principal Deborah Morse had no power to regulate the speech; he was literally beyond her jurisdiction. Thus, at oral argument, the Justices debated the issue rather seriously.

The student's lawyer made the strained argument that because his client was playing hooky, he could not have been at a school event. On the attorney's reasoning, the student was expressing himself in a public location, divorced from any school activity. It just so happened his classmates were at the same location, across the street from the school, on the date and time of the Olympic torch parade, in order to view the parade, in the middle of the school day. After the parade, the students, including his client, even returned to the school building to attend classes.

The very recitation of the student's attorney's theory refutes it. This was a school-sponsored event. The student was on the parade route, across from the school, during school hours. The only reason the students could gather to watch the parade was that the school had suspended classes for this very purpose.. Thus, the principal had legitimate latitude to regulate reasonably, in light of the educational institution's mission.

What Was the School's Interest in the Suppression of this Speech?

Former Judge Kenneth Starr, the attorney for the school, began his argument with the statement that, "[i]llegal drugs and the glorification of the drug culture are profoundly serious problems for our nation." In other words, he argued that this was a case about the war on drugs, not a case about the freedom of speech. The principal had removed the banner because a central message at the school was anti-drug. She made the snap judgment that this casual reference to drug use was a glorification of it, and, therefore, that it was not appropriate at a school event. In response, the student had filed this lawsuit, which included a claim for damages against her personally.

In contrast, the students' attorney argued that the school was engaging in content-based, viewpoint-based suppression that could not be justified even by the school's interest in creating a drug-free culture. Students have a constitutional right, in his view, to carry pro-drug messages so long as such messages are not physically disruptive of the classroom. He never did, though, explain how such low-value speech, which was neither political nor religious in message, and existed solely to buy the student press attention, deserved high-level protection from the Court, and the Constitution.

Several of the Justices, especially Chief Justice Roberts and Justice Scalia, were not comfortable with the notion that the principal could only ban physically disruptive speech - the kind that, say, might cause a riot in the halls. Instead, Justice Scalia made the point that speech directly undermining the school's anti-drug policy could also be viewed as disruptive, in the Tinker sense. He pressed the student's attorney, asking whether a school would have to tolerate a student wearing a button that says, "Smoke Pot, It's Fun." The attorney's answer was that the school would have to protect that speech, as well. When Scalia then asked about a button saying "Rape Is Fun," however, the attorney's answer was that such speech could be suppressed. In other words, advocating illegal drug use would be protected, but not advocating violence. Scalia's response: "This is a very, very, with all respect, ridiculous line." Justice Kennedy later declared that the student's banner "was completely disruptive of the message, of the theme that the school wanted to promote."

Speech Advocating Illegal Action: Borrowing a Test From Brandenburg?

Justice Scalia suggested a bright-line rule that would permit "any school whether it has expressed the policy or not, [to] suppress speech that advocates violation of the law. . ." There is a pre-existing category under free speech doctrine that has been reserved for speech that advocates illegal action, so the suggestion was not completely beyond the pale. The problem is that, under the relevant Supreme Court precedent Brandenburg, speech is protected until and unless illegal action is imminent. (The Brandenburg test is popularly, though inaccurately, known as the "clear and present danger" test.) Moreover, the principle does not translate easily to the school context, where waiting for imminent illegal action to silence speech advocating illegal activity makes little sense.

Thus, Justice Scalia has a point that schools should be able to create an atmosphere within which the rule of law is honored -- especially in contexts where a student-advocated activity is particularly discouraged by the school's civil culture. Why shouldn't schools be able to effectively discourage illegal drug or alcohol use, smoking, promiscuous sex, profane speech, and violence? The Motion Picture Association of America screens movies for children under such categories; surely, schools can make similar judgments in their guardian-like role as parens patriae.

What Was This Case Really About?

According to Chief Justice Roberts, at one point in the argument, this case was really about an attempt to obtain money personally from the principal. Justice Kennedy further asked whether the student would waive damages against "this principal who devoted her life to the school . . . for this sophomoric sign." The Chief Justice was concerned about the message that would be sent to principals and teachers if they "have to fear that they're going to have to pay out of their personal pocket whenever they take actions . . . that they think are necessary to promote the school's educational mission."

Another side of this same issue is how the Supreme Court should assess the principal's assessment of the speech. The federal district court had concluded that the principal had reasonably interpreted the student's speech as delivering an anti-drug message. Starr, himself a former appellate judge, urged the Court to defer to the reasonable interpretation of the principal, who was on the scene, and whose view was upheld by the district court.

This line of reasoning has some serious merit. The argument itself illustrates how difficult it can be for principals and teachers to determine where to draw the line on inappropriate speech. Chief Justice Roberts was incredulous that anyone could maintain that the principal should have been "perfectly clear [on]. . . what she could and couldn't do." Then Justice Scalia got a laugh by saying, "As it is to us, right?" Justice Souter joined in, saying, "I mean, we have had a debate here for going on 50 minutes about what Tinker means, about the proper characterization of the behavior, the nonspeech behavior. . . . [I]t seems to me however you come out, there is reasonable debate."

There is a slippery slope in this case, but it is not the slippery slope the New York Times noted in its editorial. To the contrary, the slippery slope here is the one that is going to persuade many fine school administrators to find other lines of work. If the court rules that the school's actions in this case cross the First Amendment line, then school administrators are going to be advised to err on the side of permitting a wide swath of student attention-grabbing, inappropriate speech, even if it directly undermines legitimate school policies. This turns each principal into Sisyphus, constantly rolling the rock of civility and wholesomeness up the hill only to have it roll back down, again and again.

At the same time, principals are inevitably charged with the responsibility of keeping order in their schools. And when they cannot, because the students have more rights than rules for civility, then they and their school districts (which means all taxpayers) are going to be forced to pay for the harm that follows from a breakdown in order. Worse, these professionals then are indicted by the culture for their schools' disorder. The First Amendment cannot stand for such a proposition.

To protect this nonsense speech actually devalues the Tinker Court's ruling in favor of serious political speech. In Starr's closing words, "[w]e are light years away from that." The truth is that this was a kid who used speech to be a smart aleck and to get his 15 minutes of fame, and then when he got called on it, wrapped himself in the First Amendment. He got his fame, and now the Court needs to render a decision in no uncertain terms that makes it clear to all students (and their parents) that they don't have a constitutional right to say stupid things in school.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), will appear in paperback June 2007, and her next book, How to Deliver Us from Evil, will be published by Cambridge University Press in January 2008.

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