Student Speech Rights Case May Impact Athletics Policies

By Lee Green

In its first ruling regarding student speech rights in almost two decades -- a case bearing possible implications for student-athlete codes of conduct in athletic programs -- the United States Supreme Court ruled against the free speech claims of a high school student who had unfurled a banner at a school-sanctioned event that read "Bong Hits 4 Jesus."

The case, Morse v. Frederick, was decided on June 25, 2007 and the Supreme Court's sharply divided 5-4 decision tightened student speech rights as they had previously been interpreted pursuant to the First Amendment. Chief Justice John Roberts, along with Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy, ruled in favor of the school and its principal. Justice John Paul Stevens wrote a strongly worded dissent that was joined by Justices David Souter and Ruth Bader Ginsburg. Justice Stephen Breyer concurred in part and dissented in part.

During late January 2002, the Olympic Torch was scheduled to pass through Juneau, Alaska, en route to its final destination at the Winter Olympic Games in Salt Lake City, Utah. The torch relay was to proceed along a street directly in front of Juneau Douglas High School (JDHS) during the school day. Deborah Morse, JDHS's principal, designated the event as an approved school activity and the day's class schedule was adjusted to permit students to leave the building and watch from either side of the street directly in front of JDHS as the Olympic Torch passed by. As an approved school activity, administrators and teachers were assigned to supervise student behavior and monitor safety during the event.

Joseph Frederick was a JDHS senior who, standing across the street from the school along with several friends, unfurled a 14-foot-long banner bearing the hand-written phrase at the center of the case, "Bong Hits 4 Jesus." Video and pictures taken by television stations and newspaper media of the 10-or-more students involved in the prank revealed a group, as stated by Chief Justice John Roberts in his majority opinion, of "rambunctious" high schoolers preening for the cameras. Frederick would later claim that the phrase on the banner was merely a nonsensical statement intended to attract the attention of cameras and that he had participated solely because he wanted to be on television. Frederick did not argue that there was a political dimension to his speech such as advocating the legalization of drugs. Nor did he argue that he was expressing a religious belief.

Principal Morse, standing on the school side of the street, crossed the road and demanded that the banner be taken down. All of the students except for Frederick complied and he was subsequently suspended from school for 10 days. Throughout the proceedings to follow, Morse would maintain that she had acted solely because she believed that the banner encouraged, in violation of school policy, illegal drug use.

After exhausting his administrative appeals before the Juneau School District, Frederick filed a federal lawsuit alleging that the suspension violated his First Amendment right of free speech. The suit, seeking declaratory relief, injunctive relief, compensatory damages, punitive damages and attorney's fees, named both the Juneau School District and Principal Morse as defendants. A federal District Court ruled against Frederick, but the Ninth Circuit Court of Appeals reversed, holding that his free speech rights had been violated.

The U.S. Supreme Court granted certiorari in order to resolve two issues. The first was whether Frederick's First Amendment rights had been infringed. The second was whether Principal Morse should be held personally liable for damages in the case.

The Court's evaluation first addressed the question whether, because Frederick was not on school property at the time of his offense, the dispute should be analyzed as a school speech case. In the majority opinion, Chief Justice Roberts stated, "[T]he event occurred during normal school hours. It was sanctioned by Principal Morse ‘as an approved social event or class trip' and the school district's rules expressly provide that pupils in ‘approved social events and class trips are subject to district rules for student conduct.' Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed ... Frederick cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school."

It is important to note, however, that the Chief Justice also stated that "[T]here is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents," thereby suggesting that if Frederick had been farther removed from the school-sanctioned event, the dispute might not necessarily have been litigated as a school speech case. What if, for instance, Frederick had been standing a block away from JDHS outside the zone of supervision by school personnel, when he unfurled the sign? Or if, unnoticed by school personnel at the live event, Frederick had a photograph taken of himself holding the sign and subsequently posted the picture on his MySpace Web site?

The Court's analysis ultimately focused on the question whether a principal may restrict student speech at a sanctioned school event when that speech is reasonably viewed as promoting illegal drug use. The Court decided that she may. The majority opinion stated, "[W]e hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it."

Although Supreme Court precedent has established that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," prior cases decided by the Court have defined a limited set of exceptions under which student speech may be suppressed.

In Tinker v. Des Moines Independent Community School District, a 1969 decision, the Court upheld the right of a group of students to wear black armbands in protest of the Vietnam War by ruling that student expression could not be restricted unless the behavior in question will "materially and substantially disrupt the work and discipline of the school," a result that did not occur in the silent, passive Tinker protest that was unaccompanied by any disturbance at the school.

In Bethel School District No. 403 v. Fraser, a 1986 decision, the Court upheld the suspension of a student for delivering a speech before a high school assembly in which he included graphic sexual references. Although no disruption was created by the student's actions, the Court created a second exception to student free speech rights by ruling that the "school district acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech."

In Hazelwood School District v. Kuhlmeier, a 1988 case, the Court upheld a school prohibition on the publication of two student-written articles in the school newspaper. Although the articles posed no threat of material disruption, nor did they contain indecent language, the Court created a third exception to student free speech rights in holding that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

To the Court's three prior-established student free speech exceptions of substantial disruption, indecent speech and school-sponsored expressive activities, Morse v. Frederick adds a fourth – allowing schools to restrict student expression promoting illegal drug use. The majority opinion cited the Supreme Court's student drug-testing cases, 1995's Vernonia v. Acton and 2002's Pottawatomie County v. Earls, to reinforce its conclusion that deterring drug use by schoolchildren is a compelling government interest that justifies infringement on student free speech rights.

The Court's ruling is a narrow one and permits only restrictions on speech that a reasonable observer would interpret as advocating illegal drug use. A concurring opinion written by Justice Alito and joined by Justice Kennedy stated that the decision "provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use."

The dissent written by Justice Stevens and joined by Justices Souter and Ginsburg argued that the nonsensical phrase "Bong Hits 4 Jesus" did not advocate illegal drug use and that the Court should not "justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more."

Finally, Morse v. Frederick would appear to justify the inclusion in student-athlete codes of conduct of rules prohibiting speech or expressive activities promoting illegal drug use. If a student-athlete was suspended from athletics participation for the violation of such a policy, the free speech issue would likely turn on the question whether the expressive activity had occurred within the context of a school-sanctioned event and the "gray area" challenge for schools in making such a determination might be a situation where the speech or expressive behavior in question contains elements linking it to the school but takes place off school property or appears solely on a social networking Web site.

To read the full text of the written decision in Morse v. Frederick or any of the Supreme Court cases referenced in this article, click here. To listen to the oral arguments in the Morse case, click here.

Lee Green is an attorney and a professor at Baker (Kansas) University, where he teaches courses in sports law, business law and constitutional law. He may be contacted at Lee.Green@BakerU.Edu.