Quick Thoughts on Morse v. Frederick

As most of you know, the Supreme Court heard arguments the other day in Morse v. Frederick--the "Bong hits 4 Jesus case." In January 2002, students were released from Juneau-Douglas High School to watch the Olympic torch pass by. Frederick, who had not attended school that day, joined some friends on the sidewalk across from the high school (off school grounds). Frederick and his friends waited for the television cameras so they could unfurl a banner reading "Bong Hits 4 Jesus." When they displayed the banner, then-principal Deborah Morse ran across the street and seized it. Morse initially suspended Joseph Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to 10 days after he refused to give the names of his fellow participants. The Ninth Circuit held that the principal's action violated Frederick's rights under the First Amendment and SCOTUS granted cert.

The question presented is whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty supervised events. The briefs, including amicus briefs, can be found here.

This case is governed by the Tinker v. Des Moines School District standard. In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War. The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.

I believe that Frederick will prevail. It's not like he stood up in class, unrolled the banner, and was disruptive. The event occurred off school property and on a public side walk. Surely, the kid had a constitutional right to do what he did--even if the message was dumb and he was simply looking to get his picture in the paper. My bet is that the Supreme Court will affirm the Ninth Circuit's decision. What Frederick did cannot be described as causing a substantial disruption to the school's educational mission.