Morse v. Frederick

By Shawn Healy

I've been tracking the prospects of the "Bong Hits 4 Jesus" case for several months on this blog, and today the Supreme Court heard oral arguments in a decision that will revisit student free speech rights for the first time in 20 years. Based on the preliminary analysis of today's proceedings and my own reading of the case specifics, I would suggest that the facts support the free speech side of the argument presented by Joseph Frederick (the former Juneau-Douglas High School Student). The second question about holding the high school principle Deborah Morse responsible for damages is a closer call.

If the Court chooses to apply free speech standards in a school setting to this off-campus incident, than the more permissive Tinker standard likely applies, not the Fraser standard regulating lewd and offensive speech, nor the Hazelwood standard regulating student speech in school publications and other school-sponsored venues. The Court could shy away from the school entirely given the fact that the incident did not take place on school grounds or at a school-sponsored activity. Attendance was voluntary, and Frederick did not even attend classes beforehand (I certainly don't commend the latter). If so, free speech rights enjoyed by adults should provide Frederick (he was 18 at the time) with a decisive victory.

The Supreme Court typically issues a flurry of decisions at the conclusion of their term in June, so expect a ruling sometime between now of then, with the later option more likely.