Fanning the Flames: The Freedom Project Blog


Student Speech Takes Another Hit?

By Shawn Healy
The long-anticipated "Bong Hits 4 Jesus" decision was unveiled by the Supreme Court this morning alongside two other First Amendment cases (taxpayer standing on Establishment Clause cases, issue advocacy ads during political campaigns, analysis to follow later this week). The 5-4 decision appears on the surface as a setback for student speech as the Court ruled that the principal, Deborah Morse, did not violate Joseph Frederick's First Amendment rights when she punished him for unfurling the now infamous banner. As a result, she is not responsible for compensatory damages. Moreover, in addition to the lewd and obscene speech prohibited by the 1986 Fraser decision, Morse v. Frederick extends to speech that promotes drug usage among students.

Justice Roberts, joined by his four conservative counterparts (Scalia, Kennedy, Thomas, and Alito), held that "schools may take steps to safeguard those entrusted to their care from speech that can be reasonably regarded as encouraging illegal drug use." He took special care to establish Morse's jurisdiction in this specific context, and neither of the dissenting opinions challenged the Chief Justice on these grounds. "School was in session," and the event, an Olympic Torch Relay, was an "approved school event or class trip." Students were permitted to leave class and watch the event on either side of the street. Teachers and administrators monitored student behavior, and Frederick, although tardy, joined his fellow students on the side of the street opposite the school. The banner itself "was easily readable by the students on the other side of the street."

For his actions Frederick was suspended for 10 days (later reduced to 8 upon appeal), and the Superintendent ruled that his statement was not political, but "potentially disruptive to the event and clearly disruptive of and inconsistent with the school's educational mission to educate students about the dangers of illegal drugs and to discourage their use."

The Supreme Court deemed "reasonable" Morse's determination that Frederick's message might be interpreted by his fellow students as promoting illegal drug use. The majority then proceeded to couch this decision within the context of previous rulings, namely the material and substantial disruption exception of Tinker, the dual principles of Fraser that diminish students' rights in a school setting and its recipient limits on Tinker, both of which were reinforced in Kuhlmeier.

They proceeded to reference a slew of student drug cases, cementing the fact that curtailing drug use among students is a "compelling interest." In the end, "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."

Justice Thomas concurred with the majority opinion, but also called for overturning Tinker, "suggesting that the First Amendment does not protect student speech in public schools." He admits that the Court created another exception to Tinker in today's decision, but fails to "offer an explanation of when it operates and when it does not." As an result, Thomas fears "that our jurisprudence now says that students have a right to speak in schools except when they don't..."

Justice Alito, joined by Justice Kennedy, limits the impact of the majority opinion, joining Roberts only so far as to limit speech "advocating illegal drug use" and disallowing limits on speech "commenting on any political or social issue," including marijuana legalization. They view drug-related speech as a student safety issue for which schools have a responsibility in protecting.

Justice Breyer, in dissent, would offer Morse qualified immunity based on the facts of the case, but go no further in making a determination of whether or not her actions violated Frederick's First Amendment rights.

Justice Stevens, joined by Justice Souter and Justice Ginsberg, echoes Breyer, but would not punish Frederick for "his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs." The majority decision, according to Stevens, "does serious violence to the First Amendment" by enabling punishment for a message with which the school disagrees. In the end, "This is a nonsense message, not advocacy."

As a former teacher my collective experiences suggest that the practical impact of this decision is likely minimal. For example, when students wear t-shirts to school promoting alcohol or drug use (a beer logo is often sufficient) they are regularly asked to change shirts, turn it inside-out, or asked to return home for more appropriate attire. Moreover, Alito's concurring opinion seemingly limits the extension of a slippery slope toward regulation of substantive social and political issues (dissent of the Iraq War, for example).

The decision is by no means reason to celebrate, however. If Tinker was the pinnacle for student speech rights, the downward slide that began with Fraser and continued with Kuhlmeier shows no signs of slowing, much less restoration. It places further discretion in the hands of teachers and administrators to regulate student speech, and promises even more litigation.

It also sends the wrong message to tomorrow's leaders. High school students are on the verge of entering the adult world. Indeed, in many ways they are already members through work, relationships, even economic obligations. How can we expect them to contribute to a national political dialogue if we restrict and shield them from the real world discourse unfolding outside the schoolhouse gate?


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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