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Morse v. Frederick


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127 S. Ct. 2618 (2007), argued 19 Mar. 2007, decided 25 June 2007 by vote of 5 to 4; Roberts for the Court; Thomas concurring; Alito, joined by Kennedy, concurring; Breyer concurring in part and dissenting in part; Stevens, joined by Souter and Ginsburg, dissenting. Joseph Frederick displayed a fourteen-foot banner bearing the phrase “Bong Hits 4 Jesus” as the 2002 Winter Olympic Games torch relay passed his high school. Frederick claimed that the banner was a publicity stunt, calling it “nonsense.” The principal of the school disagreed. She confiscated the banner and suspended Frederick for ten days, arguing he had violated school policy by encouraging illegal drug use.

The Court rejected Frederick's contention that his speech was protected by the First Amendment, concluding that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” (p. 2622). The majority conceded, per Tinker v. Des Moines Independent Community School District (1969), that students had a right to engage in “non-disruptive speech.” But they were unwilling to extend Tinker to speech at a “school-sponsored event” in the light of the public interest in deterring the use of illegal drugs. Justice Clarence Thomas, in a provocative concurring opinion, argued that Tinker should be overruled. Justice John Paul Stevens, in turn, found little merit in sanctioning what he characterized as, at best, “an oblique” reference to drugs.

The majority opinion is arguably consistent with prior decisions. In Hazlewood School District v. Kuhlmeier (1988), for example, the Court held that Tinker did not extend to speech sponsored by the school, while in Bethel School District No. 403 v. Fraser (1986) it allowed a school to sanction a student for “crude and vulgar” speech at a school event. Morse seems to grant school authorities additional latitude, however. The interesting question is how far the holding extends. Where will future lines be drawn if letting students out of school to attend a relay overseen by another organization is deemed a “school-sponsored” event? On what basis does a court determine that a third party's contrary reaction is “reasonable,” given a student's avowed intent? The answers to such questions will determine if Morse simply clarifies the rules governing student speech or in fact signals a retreat.

Mark R. Killenbeck

Subjects: Law.


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