Fanning the Flames: The Freedom Project Blog


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.


Anonymous Anonymous said...

Why didn't anyone argue that a teacher's authority to abridge the exercise of a student's first amendment rights, absent prior parental consent, ends at the school's doors?

4:02 PM  
Anonymous Dasaro said...

To Anon,

Did you read the oral arguments? See:

4:10 PM  

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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at