The Supreme Court's "Bong Hits 4 Jesus" First Amendment Decision:
How Its Betrayal of Free Speech Principles May Have Influenced A Recent Federal Appellate Decision

By JULIE HILDEN
Monday, Jul. 09, 2007

One of the most hotly-discussed cases of this Supreme Court Term was Morse v. Frederick, better known as the "Bong Hits 4 Jesus" case. The case arose when high school principal Deborah Morse confiscated a banner bearing that slogan from senior Joseph Frederick. Frederick had displayed the banner at a corporate-sponsored Olympic-torch-passing rally on a town street, which his class had been let out of school to attend.

On June 25, a 5-4 majority of the Court held that Principal Morse's action, and Frederick's subsequent suspension, did not violate the First Amendment.

In this column, I'll consider why the Morse Court ruled as it did.

In addition, I'll also consider the July 5 decision by the U.S. Court of Appeals for the Second Circuit, in Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., which mentions the Supreme Court's decision and foreshadows how that decision may influence the federal trial and appellate courts.

The Morse v. Frederick Decision

As I explained in a prior column, I believe Frederick was well within his First Amendment rights in holding up the banner - for two reasons:

First, the event occurred on a public street - where Morse, a senior old enough to vote, ought to have essentially the same rights as any other adult. In my view, the fact that school cheerleaders, the band, and the principal attended hardly transformed the event into a virtual extension of the school. The Court, however, disagreed.

Second, prior Supreme Court precedents on school speech had focused on the potential of disruption, and there was no evidence of any such potential here. One key case, Tinker v. Des Moines, had approved public school students' wearing of armbands meant to protest the Vietnam War precisely because their symbolic speech did not disrupt, or have the potential to disrupt, school activities. Yet the only disruption here seems to have been caused not by Frederick, but by Principal Morse, who disrupted a peaceful rally by grabbing the banner.

Then why did the Supreme Court reject Frederick's First Amendment claim? The majority -- composed of Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- held that the principal had a right to "safeguard" her students from a message that could "reasonably be regarded as encouraging illegal drug use."

Yet this is exactly the kind of content regulation the First Amendment most abhors - not just for adults, but for young students too. After all, as the Tinker Court wisely noted, students "may not be regarded as closed-circuit recipients of only that which the State choose to communicate. They may not be confined to the expression of those sentiments that are officially approved…"

The First Amendment Protects Messages that Encourage Peaceful Civil Disobedience

More generally, the idea that silencing speech is justified to ensure blind compliance with the status quo is anathema to the First Amendment. When the government tries to "safeguard" its citizens from a message it doesn't want them to hear, because it doesn't want them to act on it, that is classic censorship.

Granted, there is one exception to this rule, under which censorship is permitted, despite the First Amendment's protection of speech - but it covers the advocacy of imminent violence, not of lawbreaking generally. Thus, while incitement to riot can constitutionally be deemed a crime, incitement to peaceful civil disobedience cannot.

Here, moreover, Frederick was not inciting anything imminent, let alone anything violent. At most, perhaps students might have read his banner, developed a slightly more positive (or at least less serious) attitude toward marijuana, then tried the drug at some uncertain future date and/or joined a rally in support of its legalization. That's called persuasion, not incitement.

Of course, Tinker watered down the imminent violence requirement in the school context, to a requirement of "disruption." But again, even that watered-down requirement simply was not met here.

The Majority's Ruling Was Self-Contradictory, Deeming the Message Dangerous But Not Political

Ironically, even though the five-Justice majority held advocacy of illegal drug use was the banner's message, it somehow also held that "this is plainly not a case about political debate over the criminalization of drug use or possession."

This logic just doesn't work: If the banner was dangerous, it was dangerous precisely because of its ability to convince and persuade students that a particular act of peaceful civil disobedience was one they should commit. In other words, if the banner posed a threat to the school, it was because it was political, taking a stand against the criminalization of drug use by encouraging students to commit civil disobedience by breaking the law. Few, after all, both advocate lawbreaking and believe that the law to be broken is wholly just, and should stay on the books.

During the Civil Rights Era, when sit-ins were common, could a banner directed to African-Americans saying "Eat a Burger at a Segregated Lunch Counter 4 MLK Jr." have properly been deemed to fall outside "political debate"? Certainly not - even though the law allowed private segregation, and police could be called to re-segregate the lunch counter and jail the protester, just as they could be called to arrest a marijuana-smoking student today.

It's worth remembering, too, that students were key participants throughout the Civil Rights Movement, before we dismiss their arguments for civil disobedience as somehow not "political."

Justice Alito's Concurrence, Joined by Justice Kennedy: Why It's Unconvincing

What accounts, then, for the Court's decision? As an appellate judge, Justice Alito had evidenced sympathy for students' First Amendment rights. Justice Kennedy, too, at times has seemed a strong supporter of the First Amendment. So how did a five-Justice majority come about? I think one answer is that

Justice Alito, who concurred separately, and Justice Kennedy, who joined him, thought they could cabin the effects of the Court's decision. But to do so, they once only again invoked the unconvincing line between advocacy of civil disobedience via illegal marijuana use, on the one hand, and "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," on the other.

Not only is the line impossible to draw, First Amendment doctrine is quite clear that the government should, whenever possible, stay out of the business of making such fine distinctions when speech is at issue. Just as courts are reluctant to, say, go in and interpret a particular religion's tenets, they are also traditionally reluctant to closely interpret speaker's messages; that's why they favor content-neutral regulations of speech.

This untenable line also creates a trap for the unwary. Sophisticated speakers will easily get off scot-free, by avoiding actually advocating lawbreaking - as did the sarcastic students who posted this photo online - or by replacing humor like Frederick's with earnestness. Certainly, a banner saying "War on Drugs 4 the Birds" would pass muster.

Traps for the unwary, however, seem especially unfair in the high-school context. The fact that a sixteen-year-old cannot eloquently express a political view does not mean that he or she does not hold one.

A Post-Morse Second Circuit Decision Foreshadows Its Possible Influence

How will the decision influence the lower federal appellate courts and district courts? I think very likely that some more conservative courts will take courage from Morse to go over the First Amendment line in supporting school principals. A recent Second Circuit decision that gave its blessing to punishing student speech affords some insight into this possible dynamic.

That case involved eighth-grader Aaron Wisniewski's Instant Message (IM), sent from his parents' home computer and viewable by other students in his class. The IM included a crude image of a person being shot in the head, and the message "Kill Mr. VanderMolen" - Aaron's English teacher.

The three-judge panel held that the school did not violate Aaron's civil rights by suspending him for a semester (though with "access to alternative education") as a result of the IM. In so doing, it mentioned, but did not rely upon, Morse v. Frederick - suggesting that Morse was distinguishable because it had held that Frederick's being at the rally was tantamount to his being "at school," whereas Aaron had written his message off school grounds.

Still, Morse may have played role here.

As the panel noted, in the 1979 case of Thomas v. Board of Education, the Second Circuit had emphasized that a public school's authority generally does not "reach beyond the schoolhouse gate." The panel thus had to reconcile this statement with its own holding that the school could punish Aaron for using a computer in his home. It did so by pointing out that it was foreseeable that Aaron's comments might cause disruption at his school. And indeed, it was a classmate who turned Aaron in.

Would the Second Circuit have so quickly reconciled these two rulings before Morse? Perhaps not. Perhaps, instead, it might have hewed a little closer to Thomas, and worried a bit more about a school's acting against a student based on something he'd done at home.

I am not arguing that Wisniewski was necessarily wrongly decided. Unlike the banner at issue in Morse, the IM advocated violence, which I believe demands a different analysis.

Still, I do think the panel may have been too quick in its consideration and rejection of the First Amendment claims here, thanks to Morse's broad grant of authority to principals, even when that authority was exercised beyond the schoolhouse gate

.

In the wake of Morse, will courts now tolerate incursions on students' First Amendment rights -- even when those incursions are based on speech uttered far from school grounds? I think the answer is yes. It seems very likely that students' First Amendment terrain, both online and off-, and both inside and outside the schoolhouse gates, will be diminished as a result of the High Court's decision.


Hilden, who graduated from Yale Law School in 1992, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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