The “Bong Hits 4 Jesus” Case: Morse v. Frederick

By on May 9, 2007

Two legal experts debate the "Bong Hits 4 Jesus" case, Morse v. Frederick.

Julie Hilden
FindLaw.com

Julie Hilden is a regular columnist for Findlaw.com on First Amendment issues. She is a former law clerk to then-Chief Judge Stephen Breyer of the First Circuit and practiced First Amendment law at Williams and Connolly from 1996 to 1999.

Eric Hagen
Kirkland and Ellis LLP

Eric Hagen is a partner at Kirkland and Ellis LLP in Los Angeles and represents Deborah Morse and the Juneau School Board in Morse v. Frederick.

Part 1: Julie Hilden: The Bong Hits 4 Jesus Case: Why the Student Should Prevail

On March 19, the Supreme Court heard oral argument in Morse v. Frederick—better known as the “Bong Hits 4 Jesus” case. The case pits a high school principal’s claim to broad censorship authority against a student’s First Amendment rights. I’ll argue that the student should prevail.

The incident that gave rise to the case occurred when an Alaska public high school released its students for the afternoon so they could attend a privately sponsored rally on a public street to watch the Olympic torch pass by. Seeking television exposure, eighteen-year-old senior Joseph Frederick unfurled a fourteen-foot banner reading “Bong Hits 4 Jesus.” When Principal Deborah Morse saw the banner, she grabbed it, crumpled it up, and suspended Frederick for ten days.

Frederick sued Morse under a federal civil rights statute that allows plaintiffs to seek money damages for government infringement of constitutional rights. The case thus raises two questions: Was there a First Amendment violation here? And if so, should Principal Morse, as an agent of the government, be liable for the damages resulting from the violation?

The answer to both, I contend, is “Yes.” And it’s true even if one assumes, in the principal’s favor, that the rally was in fact a school function for the students who participated and that the message “Bong Hits 4 Jesus” in fact advocated drug use. (Both of these are live issues in the case that were discussed at oral argument, but I’ll concentrate on the core First Amendment question here instead.)

The Standard: Specific Evidence

The legal standard here is quite clear: It derives from the Supreme Court’s ruling in Tinker v. Des Moines Independent Community School District. There, the Court held that public school students’ speech can be punished if it “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”

Importantly, school districts must not only invoke a concern with disruption but actually cite evidence that the punishment is “necessary to avoid material or substantial interference with schoolwork or discipline.” Merely citing a speculative potential for disruption is not enough.

No wonder Justice Souter, at oral argument, queried, “What specifically did [unfurling the banner] disrupt?” Plainly, it didn’t disrupt the rally, which continued on. Nor did it disrupt the cheerleaders and pep band members who represented the school at the rally; they performed as planned. Indeed, when pressed, the principal’s attorney, Kenneth Starr, couldn’t offer any good answer to Souter’s question as to what evidence of disruption, if any, existed here.

Censorship of Student Political Speech

Instead, Starr made it clear that he wanted the Court to go beyond Tinker and set a new precedent giving principals greater authority and constricting students’ First Amendment rights. (So much for claims of conservative opposition to judicial activism. What’s wrong with the very workable, thirty-eight-year-old test in Tinker?)

Styling this as a case about “illegal drugs and the glorification of the drug culture,” Starr contended that the school’s authority doesn’t just have the power to quiet disruption but also the power to censor student views that are contrary to its own.

Accordingly, Starr freely conceded that, in his view, the principal could also have destroyed Frederick’s banner if it had said, “Legalize marijuana.” Similarly, in an apparent attempt to help Starr out, Justice Scalia suggested that the Court could adopt a rule allowing schools to “suppress speech that advocates violation of the law.”

Even more disturbing is Starr’s view that it’s up to the principal to determine if a particular message does, in fact, advocate violating the law. It is far from clear that this is the case here. (Apparently, Frederick borrowed “Bong Hits 4 Jesus” from a bumper sticker, simply because he thought it was amusing.) Moreover, in the long run, one can be quite sure that principals’ interpretations are unlikely to favor the First Amendment and very likely to aggrandize their own authority. The whole point of Tinker’s requirement that schools cite evidence was so that the principal’s self-serving view would not carry the day. Now Starr wants to turn the clock back to allow courts to look at biased interpretations, not unbiased evidence.

The upshot of Starr’s view is this: Frederick, an eighteen-year-old senior, was free to cast his vote for a pro-marijuana-legislation candidate. Yet, according to Starr, Frederick could not breathe a word about this same political view in the institution that is supposedly educating him to participate in a democracy.

Thus, even a teacher who wanted to disabuse Frederick and other students of their pro-drug beliefs wouldn’t be able to learn that the students even held those views in the first place. Even if the teacher asked if anyone believed in legalization, not a hand could be raised. After all, voicing the belief would be against school policy and could lead to punishment.

And what about the student with a drug problem who might actually be foolish enough to seek a teacher or counselor’s help? Would his or her plea be interpreted as a confession of a prior endorsement of illegal activity, which would then lead not to treatment but suspension?

Allowing this kind of censorship wouldn’t extend Tinker; it would decimate it. In Tinker, the Court upheld students’ ability to wear anti-Vietnam War armbands. Plenty of people believed at the time that the armbands’ messages undermined presidential authority, troop safety, international opinion, and the U.S.’s ability to succeed in the war—just as Starr argues Frederick’s message undermines law enforcement. Yet the Court held that the armbands, peacefully worn, were constitutionally protected.

Both the Tinker and Frederick cases involve young people’s peaceful challenges to the legal status quo. Both messages should be protected by the First Amendment. And Tinker should remain the governing standard here, just as it has been for decades.

Trampling on First Amendment Rights

The second question I mentioned above—whether the principal should be held liable here—is much less important, from a First Amendment perspective, than the first. But it is still worth discussing, because it concerns whether an action that violates the Constitution will carry consequences or whether the perpetrator will get off scot-free.

Under well-established law, Principal Morse can be held liable for damages only if “it would be clear to a reasonable [principal] that [her] conduct was unlawful in the situation [she] confronted.” As I’ll explain below, I think this standard is satisfied here. However, the Supreme Court may well disagree. Indeed, the Justices noted at oral argument that even from their point of view, this was hardly a simple, clear case.

In the end, as long as the Court rules for Frederick on the underlying First Amendment question, student First Amendment rights will be honored. Whether or not the law was clear when Morse acted, it ought to be crystal clear once the Court rules. Thus, if the Court rules for Frederick, future principals tempted to destroy future student banners will be put on notice that they may pay out of their own pockets for doing so.

Should Principal Morse have been on notice that she was violating the student’s freedom of speech, even at the time she acted? I think so—for several reasons.

First, Tinker, as noted above, has been the law for a long time. It should be at the top of a principal’s must-know list.

Second, Morse didn’t just tell Frederick to put his sign away or that it was inappropriate. Nor did she simply warn him sternly that he could be suspended if he did not put it away. Rather, she actually went right up to him, on a public street, and destroyed his banner. Last I heard, destroying someone else’s possessions—like smoking marijuana—was plainly illegal.

Thus, ironically, if Frederick had ripped up another student’s anti-drug poster at the rally, it seems quite likely that he would have been suspended for doing so. Indeed, under Scalia’s test, even if Frederick had held up a poster saying “Rip up everyone’s banners!” he could still have been suspended for advocating illegal activity.

What happened to school officials’ duty to try to convince students—first, by setting the right example—to solve their differences with reason, not violence? Does Principal Morse make a habit of tearing up the ballot of the person in the next voting booth if she knows he belongs to an opposing political party?

In short, there are few First Amendment violations clearer than a government employee’s physically destroying a message—whether it’s burning a book or destroying a banner. That’s censorship with a capital “C.” The line is quite clear: Don’t burn books. Don’t put your hand over another person’s mouth at a political rally. And don’t tear up banners that others created and are holding up so that others can read them.

Ironically, I think most schoolchildren, if taught a bit about the First Amendment, could easily identify the banner-destruction as an obvious violation. Their teachers and principals ought to at least be able to do the same.

Part 2: Eric Hagen: Morse v. Frederick: Why the School Should Prevail

School officials, teachers, students, and parents across the country are waiting to hear the Supreme Court’s answers to two questions:

  1. Do public high school students have a First Amendment right to promote illegal drugs in the school environment?
  2. If this is protected speech, should a public high school principal be subjected to a lawsuit for compensatory and punitive damages when the principal enforced a longstanding school rule against promoting illegal substances?

The answer to both questions should be a resounding “no.”

A Drug-Free Educational Environment

Many years before Juneau-Douglas High School senior Joseph Frederick unfurled his fifteen-foot “bong hits” banner at his school’s viewing of the Olympic Torch Relay, the Juneau School Board had adopted and implemented a student conduct policy that prohibited students from promoting the use of illegal substances. This policy (which the plaintiff student did not challenge on its face) expressly applies during all school-authorized activities, whether on or off campus.

Such policies are common in public high schools throughout the country and have been for many years. As a product of a public high school education, this author can recall fellow classmates being told that they could not wear t-shirts to school containing beer and cigarette logos. Some students may have chafed at this regulation of “expression.” But their parents did not arm their children with plaintiff lawyers seeking damages from public school educators. I can assume that the parents and students reasonably concluded that the promotion of illegal drugs, alcohol, and tobacco really had no place in the school environment.

Illegal drug use by minors is in fact one of the most pressing social problems plaguing our nation’s schools. Half of high school students use drugs illegally by graduation, often on school property. Teenage substance abuse is particularly prevalent where peers and adults show a lax attitude toward illegal drug use. As Justice Stephen Breyer acknowledged in Board of Education v. Earls, “the single most important factor leading schoolchildren to take drugs … [is] peer pressure.” Studies also show that adult drug dependence (and the social ills that inevitably follow) usually stems from adolescent experimentation with illegal substances. School officials, acting in loco parentis, therefore have a weighty responsibility in combating the peer pressure that leads our nation’s youths to engage in irresponsible, illegal, unhealthy, and dangerous activities.

In addition, federal law requires school districts that receive federal funds through the Safe and Drug Free Schools and Communities Act to certify periodically that they are conveying “a clear and consistent message that … illegal use of drugs [is] wrong and harmful.” The Juneau School District receives funds through this statutory mechanism and has promulgated a district-wide health and safety curriculum emphasizing the dangers of illegal drug and alcohol use. The district also established detailed policies for prevention, intervention, and discipline of students engaging in the illegal use or possession of drugs or alcohol. Keeping the school environment free from pro-drug messages is likewise an integral part of the school’s mission to promote safe, healthy, drug-free lifestyles.

The First Amendment in Public Schools

This critical educational mission illustrates how the custodial and tutelary nature of the school environment must be taken into account when examining the First Amendment rights of students. The Supreme Court has recognized that students do have free speech rights at school. But the Court has also made clear that students’ rights are not coextensive with the rights of adults. If Frederick had displayed his banner in the public square outside of school hours and outside of any school-sponsored function, then he certainly would have enjoyed the “uninhibited, robust, and wide-open” free speech rights as ordained by the Supreme Court in traditional public forum cases. Any attempt by the state to infringe on his right to display such a banner in those circumstances would have been subject to heightened scrutiny.

Here, however, Frederick was a student under public high school authority. The banner incident occurred during school hours, at a time when parents expected their children to be under school supervision. The student body, consisting of more than 1,000 students, had assembled on both sides of the street in front of the school. District personnel, teachers, and administrators were interspersed throughout the student body and were assigned supervisory roles. The high school pep band and cheerleaders were organized to greet the Olympic torchbearers as they passed the school. Frederick stood directly across the street from school with a group of his schoolmates. As the Ninth Circuit succinctly noted, “Frederick was a student, and school was in session.”

The school environment gives rise to a different set of rules. Student expression that undermines the school’s basic educational mission may be proscribed by reasonable regulations. For example, the Supreme Court recognized in Bethel School District No. 403 v. Fraser that a high school student did not have a constitutionally protected right to deliver a sexually explicit speech to his fellow assembled students. Such expression, reasoned the Court, was at odds with the mission of the school to teach civility and decorum and was inappropriate in view of the young age of the audience. Justice William Brennan, a free-speech stalwart, concurred. He agreed that “under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly that school officials conclude disrupted the school’s educational mission.”

On the other hand, in Tinker v. Des Moines Independent Community School District, the Supreme Court determined that students had a right to passively wear armbands to protest the Vietnam War. In Tinker, the school district’s sole rationale for banning armbands was to avoid controversy. In the Court’s view, that alone was not an adequate justification. Passive, non-disruptive student expression that does not interfere with the work of the schools remains protected speech.

In the Court’s most recent First Amendment student speech decision, Hazelwood School District v. Kuhlmeier, decided in 1988, Justice Byron White’s majority opinion summarized the Court’s doctrinal teachings and drew from prior case law in enunciating a unifying principle: “A school need not tolerate student speech that is inconsistent with its ‘basic educational mission.’” This is where Frederick and his amici curiae sound the alarm bell. If schools are free to define their missions willy nilly, they argue, then schools will have “unbridled discretion” to censor any and all student speech. Their parade of horribles follows: Schools would have allegedly unfettered license to arbitrarily censor non-disruptive expression of political and religious viewpoints.

Reasonable Restrictions

The petitioners in Morse v. Frederick are not seeking such unlimited authority. Nor do the petitioners contend that the Court, in its TinkerFraser-Kuhlmeier trilogy, has granted school officials such unbridled discretion. Rather, the requirement of “reasonableness” and other vital constitutional safeguards protect student speech from being unduly restricted. These safeguards include the free exercise and establishment clauses of the First Amendment, Tinker’s protection of passive political speech and non-disruptive personal intercommunication among students, the equality principle unifying our system of free expression, the due process clause of the Fourteenth Amendment, and the overbreadth doctrine. If a school district’s policies were crafted and implemented in a manner that cast a “pall of orthodoxy” over the school—for example, by banning students from expressing certain political or religious viewpoints and doing so without any legitimate educational purpose—then we would have a much different case than Principal Morse’s removal of Frederick’s pro-drug sign.

This case, after all, is not about the suppression of political, religious, or ideological discourse. Frederick’s sign added nothing to the marketplace of ideas. Frederick himself rejected any notion that he was trying to make a political (or religious) statement. He maintains, rather, that he was engaging in a meaningless publicity stunt and trying to embarrass the high school administration during this historic, televised event. Frederick sought to radically change the focus from the school’s message—publicly celebrating the Olympic torch’s first-ever arrival to Alaska—to a decidedly different subject. The message sent by Frederick to the television cameras and to his younger peers was that the glorification of the drug culture makes for a good laugh. His message encouraged his fellow classmates to be in on the joke and undermined the school’s work to teach its students that drug use is not to be taken lightly.

Who makes the call as to whether student expression runs afoul of school policy? School officials necessarily must be the message interpreters. Unless we wish to have federal judges and juries running the public schools instead of professional educators, courts should defer to school officials’ interpretations, provided such interpretations are reasonable. Here, Principal Morse interpreted Frederick’s banner as expressing a positive sentiment about marijuana use. That interpretation was deemed reasonable by both courts below, the district court and the Ninth Circuit. The superintendent and the unanimous school board also reached the same conclusion in Frederick’s two pre-lawsuit administrative appeals. Frederick himself conceded that many people would understand his “bong hits” banner as a drug reference.

The Ninth Circuit's Troubling Standard

In sum, under the Supreme Court’s student speech precedent, Principal Morse did not violate Frederick’s rights. She enforced a valid (and unchallenged) student conduct rule and did so in a reasonable manner. Rarely have these longstanding, commonplace school policies against advocating drugs been questioned or challenged. In the cases reviewing such policies, courts had reached a bottom-line consensus that school officials possess authority to prohibit messages promoting illegal substances, even absent a specific evidentiary showing that punishment was needed to avoid disruption to classroom work. The Ninth Circuit’s ruling was the first decision in American jurisprudence to hold otherwise. This makes the Ninth Circuit’s qualified immunity ruling all the more baffling. If reasonably competent school officials could disagree on the lawfulness of Principal Morse’s enforcement of school board policy, then she is entitled to immunity. The Ninth Circuit, however, determined that a conscientious educator must pay damages out of her own pocket because she failed to predict the future outcome of an appellate court ruling. That holds her to a higher standard than Chief Judge John Sedwick of the District of Alaska, the federal judge who ruled in favor of Principal Morse and the Juneau School Board.

A True Hero

Finally, I feel compelled to set the record straight as to a grossly misinformed embellishment regarding Principal Morse’s interaction with Frederick during the banner incident. She did not run up to Frederick and “destroy” or “rip up” his banner. Rather, she walked up and asked those holding the banner to drop it. Everyone but Frederick complied. When Frederick refused to drop the banner, she, according to his complaint, “rolled it up and took it.” She did not destroy or rip it up. In fact, Frederick’s counsel still has the banner, which was delivered back to Frederick all in one piece, still rolled up.

The portrayal of Deborah Morse as some would-be book burner or assault perpetrator is preposterous and unfair. Ms. Morse is a person of utmost patience and not one to lose her temper. She is a dedicated lifelong educator—a fourth-generation teacher and second-generation principal. She devoted a decade of her career to special education. She began teaching in a small Eskimo village in Western Alaska, where, much to her credit, she went the extra mile to teach two of her hearing impaired students by spending a summer learning sign language. Like thousands of other public school educators, she is a true hero. What a shame that she has been dragged through a five-year lawsuit and subjected to the specter of personal monetary liability, all because she carried out her responsibility in enforcing a long-established school board policy. The Supreme Court should free her from such folly.

Part 3: Julie Hilden: Crucial First Amendment Principles at Stake

The attorneys for Principal Deborah Morse have attempted to define this case as a sort of referendum on whether a school can maintain and enforce its longstanding policy against drug use. But that is misleading, for no matter how this case is resolved, public schools will fully retain the power to promulgate, advocate for, and enforce their anti-drug policies.

For example, public schools will retain the power to teach classes that advocate against drug use and detail the deleterious effects of particular drugs. They will retain the power to expel students caught with drugs or caught dealing drugs and turn them over to the authorities. And they will retain the power to have their employees testify in legislatures about the need for laws more harshly punishing drug-dealing to, and drug use by, high school students—such as those establishing “drug-free school zones.”

In sum, public schools can—and will always be able to—use every means at their disposal to speak and advocate for changes in the law and work to persuade their captive audience of students as frequently as they choose.

This case, however, is about whether public schools will also be able to gag their students—even eighteen-year-old seniors like Joseph Frederick, who have the right to vote—from using their much smaller and less-well-funded podiums to advocate for their own ideas and beliefs and the changes in the law in which they believe.

Specifically, here, the question is whether a school that was entirely free to have twice-daily anti-drug assemblies, if it so chose, and to paper its classroom walls with anti-drug posters was also free to silence a student who dared to use his own modest resources to express his own point of view.

Of course, the school and its principal insist that they could convey their anti-drug message even more effectively if they could also silence students’ contrary messages. But this is true in virtually every free speech setting, yet it is a tactic that is put clearly off limits by our Constitution’s First Amendment—and rightly so. Like below-the-belt blows in boxing, this is one way to win that we simply don’t consider fair play, despite how devastatingly effective it might be.

One reason for this is that few people’s minds have ever been changed simply by being silenced. Directly to the contrary, silencing a person tends to harden him in his beliefs. Imprisonment in the Gulag didn’t exactly make Aleksandr Solzhenitsyn a fan of the Soviet regime. Disruption of his peaceable protests didn’t make Martin Luther King, Jr., an avid fan of segregation. While Joseph Frederick is no Solzhenitsyn or King, First Amendment principles don’t—and can’t—turn on differences in the quality of speaker’s speech. As I’ll explain further below, serious problems follow when the government gets into regulating speech because it disagrees with the message it sends.

If the school truly wanted to change Frederick’s and his classmates’ minds about drugs, it could have used the time-honored way to do that, which is to first find out what they honestly think and then confront them with contrary evidence.

A policy of silence and fear, in contrast, only breeds resentment. It prefers the false appearance that there is no student support for drugs or drug legalization over an accurate picture of reality that would show a divided student body open to persuasion and evidence on the issue.

If the message of society and our schools is “Talk to your kids about drugs,” the companion message shouldn’t be “If they respond, tell them to shut up before they can finish a sentence.”

Disruption Must Be Both Genuine and Supported with Evidence

Doubtless recognizing that the First Amendment itself is a major roadblock in the way of their victory, the attorneys for the principal have attempted to argue that students’ First Amendment rights are subject to certain limits. Under Supreme Court precedent, that’s true. The problem is that none of these limits were transgressed here.

One leading case is Tinker v. Des Moines Independent Community School District. There, the Court held that the First Amendment protects public school students’ rights to wear armbands protesting the Vietnam War on the grounds that there was no evidence that the armbands were disruptive.

This case is very close to that one. In the “Bong Hits 4 Jesus” banner case, ironically, the only disruption that occurred was at the behest of the school’s own principal. Joseph Frederick and his friends—released from school to watch an Olympic torch-passing rally—unfurled a banner they had made so that it could be filmed by television cameras on a public street. They were peaceable; the principal was not. As the Ninth Circuit put it, based on the findings of the district court, she “grabbed and crumpled up the banner.”

(The principal’s attorneys now claim that the banner survived the crumpling. But the attempt to speak did not survive, for apparently, the banner was never seen on television and was confiscated by the principal. Whether or not the banner was physically destroyed, the student’s ability to send his chosen message to his chosen audience surely was.)

Arguably, it might make sense under some circumstances for a school to avoid disruption by censoring a student banner that causes interstudent disruption—for instance, a name-calling banner taunting another student into a fistfight. But it makes no sense to allow the principal to be the disruptive one.

By comparison, in First Amendment law, the truly difficult cases pit the rights of students to be free of harassment against the rights of other students to state their views. One student may wear a pro- or anti-gay t-shirt; another student may be so avidly against (or for) gay rights that violence is a real possibility.

Those are hard cases; this is an easy case. No one claims that a fistfight—or even a heated argument among students—would have broken out had Frederick’s banner been allowed to wave.

Morse’s attorneys also cite two other Supreme Court precedents: Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier. But neither is closely parallel to the “Bong Hits 4 Jesus” banner case before the Court. Most obviously, Kuhlmeier dealt with student-written articles in a school-sponsorednewspaper, and Fraser dealt with a student’s speech at a school-sponsored assembly. (Fraser also dealt with sexual speech, the status of which is complicated given the doctrine that even non-obscene sexual speech may sometimes be deemed obscene to minors.)

Frederick’s banner, rather than being school-sponsored, was sponsored only by himself and his friends. The expressive activity by the uniformed cheerleaders and band members performing at the rally on the same street was plainly school-sponsored; the banner was plainly not.

The factor of school sponsorship played a dominant role in both precedents. The majority in Kuhlmeier stressed “educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school”—which, it said, “may fairly be characterized as part of the school curriculum.”

Any student who thought Frederick’s banner was part of the school curriculum would have been, to put it bluntly, on drugs.

Allow Speech to Be Aired First, and Consider Remedies Later

Eric Hagen contends that I was unfair to call Principal Morse a “would-be book burner or assault perpetrator.” But rather than suggesting the principal was going to soon appear on America’s Most Wanted, I was arguing that she had misunderstood a principle of First Amendment law that should have been obvious: It is much worse to silence speech in advance than to punish it afterwards.

An important issue in the case is whether the principal should have known she was violating Frederick’s First Amendment rights—which is required before she can be asked to pay money damages under the relevant federal civil rights statute. It seems likely that the Court will hold that she should not have been expected to have this degree of knowledge on the ground that this case raises legal questions so complex that the Court itself found it appropriate to grant review.

But will such a holding—though likely—be the correct one? I’m not so sure. Most educated adults are familiar with the doctrine of prior restraint, which holds that even though speech may do damage, courts are averse to silencing it in advance. Instead, they prefer to allow the speech to occur and then calculate any appropriate damages later.

There’s a genuine cost to this doctrine: In a defamation case, for instance, it may mean that harm is done to a person’s reputation that can never be fully compensated. But courts realize that the harm done by silencing speech—by ordering that newspapers never make it to the newsstand—is a greater harm. It’s the harm of having a system in which the government tells citizens what they can and cannot say and enforces that ruling through physical confiscation of First Amendment–protected materials.

Content-Based Regulation Is Highly Suspect

Morse’s lawyers also venture into shark-filled First Amendment waters when they suggest that content censorship is perfectly okay. Contradictorily, they try to suggest both that Frederick’s “Bong Hits” message was profoundly dangerous and that it was nonsensical. But if it was so empty, why is it also so scary?

Hagen writes, “This case, after all, is not about the suppression of political, religious, or ideological discourse. Frederick’s sign added nothing to the marketplace of ideas.” But if the statement added nothing, how could it detract, as Hagen also claims, from the message Principal Morse and the school were sending? Either the banner sent a pro-drug-legalization message or it did not. If it did, the First Amendment protected it. If it didn’t, Morse’s arguments for crumpling up the banner fall apart.

Morse’s lawyers also suggest that the one to say what the banner truly meant was Principal Morse herself. But her bias is obvious: Can a defendant facing large liability really be trusted to give a candid account of how she interpreted a given message? The temptation to give the message a more threatening interpretation is great.

More generally, too, it’s always dangerous when the government is the one interpreting a message. That’s why courts hearing First Amendment cases count it as a major plus when legislation or regulation is “content-neutral.” And, that’s also why courts in cases involving speech tend to look to what a typical reader—not a government official—would interpret a message to say. (For this reason, it doesn’t really matter whether Frederick himself was just copying a bumper sticker, as has been reported.)

Here, I think a typical reader would see the banner as a playful, jokey send-up of earnest attitudes regarding both drugs and religion. Fairly read, the banner does conflict a bit with the school’s anti-drug message in that it suggests that marijuana can be a less-than-serious subject. This isn’t the most informed and trenchant commentary ever voiced on marijuana legalization. But it isn’t vacuous, either.

A Simple Civics Lesson That a School Principal Never Bothered to Learn

In conclusion, the three First Amendment principles implicated here are simple: (1) Silencing others’ speech is not a legitimate way for the government to promote its own message; (2) even speech that can be punished afterwards, it can’t be silenced in advance; and (3) the government may be able to regulate speech due to its effects but never due to the message it sends.

If I were teaching a high school civics class, I’d write these principles on the board in the First Amendment lesson. I think students would understand them instantly. Why couldn’t Principal Morse?

Part 4: Eric Hagen: Context Matters in Student Speech Saga

When asked whether he was trying to convey any particular idea with his “Bong Hits 4 Jesus” banner, student-plaintiff Joseph Frederick testified, “I wasn’t trying to spread any idea.” He acknowledged that many people would (and did) understand the drug reference in his banner. But he insisted that the phrase was “pretty much nonsense”—intended to be “controversial and yet ultimately meaningless.” The great irony in Frederick’s damages lawsuit against his principal and local school board is that he is alleging viewpoint discrimination when all along he maintains he was not advocating any viewpoint and he fails to identify any viewpoint of his that was suppressed.

Faced with that glaring contradiction, Frederick and his supporters have tried to morph this case into something it is not. This is not a case about educators gagging students who are trying, as Julie Hilden puts it, “to advocate for their own ideas and beliefs and the changes in the law in which they believe.” Frederick has never suggested that he was advocating for the legalization of marijuana. Hilden stitches the “legalization” overlay onto Frederick’s stunt in an effort to give his speech gravity that is simply not there. In fact, Principal Deborah Morse explained in her deposition that a student advocating change in the marijuana laws and doing so in a non-disruptive manner would not have been punished under school district’s rules. If there was any doubt, the Juneau School Board has explicit policies that embrace students’ rights to explore fully and fairly all sides of political issues. As Frederick freely admits, engaging in such discourse is not what he was doing here.

In addition, there was still the issue of Frederick disrupting the pageantry of a historic school event by unfurling a fifteen-foot banner as a crude publicity stunt. Tinker v. Des Moines Independent Community School District did not create a free-for-all to protect such expression. And Bethel School District No. 403 v. Fraser removed any doubt about whether public schools retain authority to manage order and decorum at school events. So too, Hazelwood School District v. Kuhlmeier clarified that schools are not required to facilitate the dissemination of student messages to the greater community. The context of where and how Frederick chose to display his banner is therefore important. He could have positioned himself a block away from school (or anywhere else along the ten-mile relay route other than in front of the school). Had he not used the school’s venue to pull his prank, he would not have been punished for his sign (truancy would have been another matter).

To the extent that Hilden suggests Frederick had a constitutional right to have his banner seen on television while standing in front of his school, the Supreme Court’s student speech doctrine creates no such entitlement. Since when does a public high school student have the uninfringeable right “to send his chosen message to his chosen audience”? Who would dispute that a teacher need not tolerate a student pontificating on the war on drugs during a class on Shakespeare?

First Amendment protections are exquisitely contextual. The school setting, as the Supreme Court has recognized time and again, is a unique context with special characteristics. The culture of deference for school officials’ decisions should be respected in all but the most exceptional circumstances—i.e., as the Court has said, where the Bill of Rights is “directly and sharply implicated.” When school officials reasonably carry out their core educational mission, they should not face the specter of personal civil liability and long, expensive litigation.

Hilden dismisses as a red herring the notion that public schools should have the authority to keep pro-drug messages out of the learning environment. Her argument runs counter to the judgment of professional educators nationwide who have determined that such messages undermine a basic educational mission to promote student health and safety. School policies against promoting illegal substances exist in the public school systems of every federal judicial circuit. If the enforcement of such policies is determined to be unconstitutional, then thousands of school districts nationwide will soon be revising their policies lest they be haled into court. In Texas, for example, at least 99 percent of the public school districts prohibit students from wearing clothing that advertises or depicts tobacco products, alcohol, or drugs.

Such policies, which are motivated by concerns over students’ health and well-being, are backed up by a wealth of studies showing that messages advocating the use of illegal substances significantly influence minors. It is not surprising then that laws exist to curtail the display of potentially dangerous messages to children. The city of Baltimore, for instance, banned billboard advertisements for alcoholic beverages in areas where children are likely to walk to school or play in their neighborhoods. The Fourth Circuit Court of Appeals twice upheld this city ordinance when challenged on First Amendment grounds, and the U.S. Supreme Court let the ruling stand. If local governments, as sovereigns, have the authority to restrict commercial alcohol advertisements in the school environment, should local school officials face punitive damages for restricting the very same messages?

Indeed, through governmental and industry self-regulation, advertising for alcohol and tobacco products is subject to limitations—for the very purpose of protecting minors from underage substance abuse. The Motion Picture Association of America likewise promulgates film ratings based on age-appropriate content—namely, sex, violence, language, and drug use. In recent weeks, there has been a well-publicized push to place additional age restrictions on films that glamorize smoking. All of this reflects fundamental societal understandings:

  • Teenage substance abuse is a real problem.
  • Minor children are particularly susceptible to peer pressure and subtle encouragement to use illegal substances.
  • Adults, including public school educators who act in loco parentis, have a responsibility to make sure that children are not desensitized to the dangers of substance abuse.

Prior to the Ninth Circuit’s decision below in Morse v. Frederick, courts had uniformly (and without exception) agreed that the school setting was no place for the promotion of illegal substances and that such expression could be restricted. In Williams v. Spencer, for example, the Fourth Circuit upheld a public high school’s ban on distributing an underground newspaper that contained an advertisement for bongs. Observing that physical classroom disruption was not the only justification for limiting student expression, the court of appeals took judicial notice that advertisements for drug paraphernalia endanger students’ health and safety.

Not surprisingly, in all of the reported school speech cases involving restrictions on messages promoting the use of illegal substances by minors, nobody has ever argued that such messages have any modicum of social value. For Frederick to justify the extraordinary remedy of federal judicial intervention in local school operations, he should have shown, at a minimum, that his “speech” had some inherent value. He did not.

Five years ago, Frederick sought to change the focus of a school-authorized event from a spirited celebration of the Olympic Games to a sophomoric salute to the drug culture. The school responded appropriately. Today, Frederick wants to change the subject away from illegal drugs. Whether “Bong Hits 4 Jesus” was a promotion of illegal substances or, as Frederick now contends, gibberish, the message was not constitutionally protected in the public high school context. The removal of that message from a school-sponsored event most certainly does not warrant putting conscientious school officials through the ordeal of a five-year damages lawsuit.