Julie Hilden, a former law clerk to then-Chief Judge Stephen Breyer of the First Circuit, practiced First Amendment law at Williams & Connolly from 1996 to 1999. A variant of this column previously appeared on FindLaw.com, for which Hilden is a regular columnist on First Amendment issues.

 

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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.

Eric Hagen responds to Julie Hilden.