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Did student-speech rights go up in smoke?

By David L. Hudson Jr.
First Amendment scholar

With a stroke of the powerful pen of Chief Justice John G. Roberts Jr., the U.S. Supreme Court limited student-speech rights this week, creating another exception to Tinker v. Des Moines Independent Community School District, its landmark 1969 First Amendment decision in which it declared that students do not “shed their constitutional rights to freedom of expression at the schoolhouse gate.”

As a result of a colorful case colloquially known as “Bong Hits 4 Jesus,” the Court ruled June 25 that students just outside the schoolhouse gate lose their First Amendment rights if they speak even ambiguously about drugs. Though many associate the “war on drugs” with a loss of Fourth Amendment freedoms, the First Amendment also fell victim in the Court’s decision in Morse v. Frederick.

The question becomes whether the Court’s recent decision will curtail student-speech rights dramatically or will represent only a narrow “drug exception” to Tinker.

The case involved the expressive activities of then-18-year-old Joseph Frederick, who defiantly unfurled his 14-foot banner with the words “Bong Hits 4 Jesus.” The Alaskan, who now lives in China, claimed he was not advocating for drugs or for religion but merely testing the limits of his free-speech rights. He contended that his school principal, Deborah Morse, doubled his suspension from five days to 10 after he quoted Thomas Jefferson: “Speech limited is speech lost.”

Whatever the teen’s intent, Chief Justice Roberts divined that a reasonable observer would support Morse’s interpretation that the strange message advocated drug use or at least contravened the basic mission of the school’s anti-drug policies.

Roberts’ opinion certainly limits Tinker, allowing “schools to restrict student expression that they reasonably regard as promoting illegal drug use.” However, Roberts’ opinion was not a complete disaster for at least three reasons.

First, Roberts rejected the school officials’ specious argument that the analysis was controlled by the Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court created a huge exception to Tinker for school-sponsored speech. Under Kuhlmeier, school officials can restrict school-sponsored student speech — such as some school newspapers and school plays — if they have a rationale reasonably related to a legitimate educational purpose (which forms a broad category). Roberts wrote: “Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur.” An expansion of the Kuhlmeier decision would have been a tragic loss for student-speech rights.

Second, and even more important, Roberts rejected an argument by Ken Starr (who represented the school officials before Supreme Court pro bono) that Frederick’s speech could be punished because it was “plainly offensive” within the meaning of the Court’s 1986 decision in Bethel School District v. Fraser. In Fraser, the Court ruled that public school officials could punish vulgar and lewd student speech, such as profanity. Language in the Fraser opinion also referred to “plainly offensive” speech. Some lower courts have interpreted the “plainly offensive” rationale quite broadly, restricting a broad range of controversial political expression. Roberts warned against extending the “plainly offensive” wand of censorship, writing: “We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.”

Roberts must have paid close attention to numerous amicus briefs in the case from a broad range of liberal and conservative groups who feared the Court could place any controversial student speech — on subjects ranging from abortion to gay rights to religion — at grave risk.

Finally, some may draw a measure of reassurance that Roberts gained a majority only with the votes of Justices Samuel Alito and Anthony Kennedy. Alito wrote a narrow concurrence, joined by Kennedy, that emphasized the Court’s ruling “goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and … it provides no support for any restriction of student speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

Many First Amendment advocates will applaud the dissent of the independent-minded John Paul Stevens, who accused the majority of “inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.” Stevens lamented the majority’s approval of blatant viewpoint discrimination.

First Amendment boosters also will undoubtedly hope that the Court and lower courts will blow “Bong Hits 4 Jesus” into a very narrow exception, lest it inhale the First Amendment rights of young people.


High court limits student speech in 'Bong Hits 4 Jesus' case

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts writes. 06.25.07

Quick look: Morse v. Frederick


Conn. teen punished for Internet insult sues school officials

Avery Doninger contends her free-speech rights were violated when she was removed as class secretary for offensive slang posted on blog. 07.18.07

11th Circuit backs teen's suspension for penning violent story
By Courtney Holliday Three-judge panel says Georgia high school didn't violate First Amendment by punishing girl for journal entry about student who dreams she kills teacher. 08.07.07

Conn. teen to appeal ruling that OK'd punishment for blog posting
Federal judge upholds administrators' decision to discipline Avery Doninger for derogatory comments she made outside of school. 09.09.07

2nd Circuit considers appeal from teen disciplined for blog post
Lawyer for Connecticut teen argues that what students write on the Internet shouldn't give schools more cause to regulate off-campus speech. 03.06.08

Federal judge upholds 5th-grader's suspension for alleged threat
By David L. Hudson Jr. Elementary school student in Montgomery, N.Y., wrote in class assignment that his wish was to 'blow up the school with all the teachers in it.' 05.13.08

2nd Circuit: School can punish teen for online criticism
Students 'may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct "would foreseeably create a risk of substantial disruption within the school environment."' 05.30.08

Meaning of 'plainly offensive' speech anything but clear
By David L. Hudson Jr. Federal circuits are split over how to apply 1986 Supreme Court decision on student expression. 09.20.06

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By Tony Mauro Rulings shed light on how more conservative majority looks at the First Amendment — and how the moderate-liberal wing is losing ground. 06.26.07

Rhetoric aside, most First Amendment claimants lose
By Tony Mauro Beyond the scorekeeping, however, 2006-07 term gives important insights into how Roberts, Alito view First Amendment. 07.16.07

2nd Circuit: School can punish student for off-campus Web activity
By David L. Hudson Jr. Three-judge panel backs middle school's suspension of student who used home computer to send friends instant message about killing his English teacher. 08.07.07

Morse v. Frederick: history, policy and temptation
By William D. Araiza In student-speech and other cases, Justice Thomas' approach reflects discomfort with the balancing and line-drawing that marks much of the Court’s recent free-speech jurisprudence. 10.08.07

For high school students, free speech is no joke
By Charles C. Haynes Narrowly drawn as Supreme Court justices tried to make 'Bong Hits 4 Jesus' ruling, don’t be surprised when many school officials and judges use it to find new grounds for censoring students. 07.08.07

Lower court takes narrow view of 'Bong Hits' ruling
By Douglas Lee In case involving student ridiculing principal on MySpace, district judge refuses to read high court's decision in Morse v. Frederick as expanding deference due school officials. 07.18.07

We’re strangling high school free speech, press
By Gene Policinski Between adverse court rulings and antagonistic school officials, students are learning that free expression is not valued. 08.12.07

5th Circuit extends limits on student speech
By Douglas Lee Panel makes several curious twists and turns to reach conclusion that its decision 'follow(s) the lead' of recent Supreme Court ruling. 11.27.07

Hazelwood still extends far beyond student press
By David L. Hudson Jr. 6th Circuit ruling reminds us 1988 high court decision is oft-invoked to restrict many kinds of student speech. 04.21.08

K-12 public school student expression horizon

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