Morse v.

Frederick 2007
Petitioners: Deborah Morse et al.
Respondents: Joseph Frederick
Foundations of Our Legal System: Rights and Privileges; First Amendment Rights; Freedom of
Speech
SUMMARY: A high school senior brought a banner that said BONG HiTS 4 JESUS to a
school-sanctioned rally, which the principal confiscated because she believed it encouraged the
use of illegal substances. The student sued for the violation of his First Amendment right to
freedom of speech, but the Court held that the rights of students are construed in light of the
schools policies, and therefore, no breach of his right occurred.
FACTS:

Respondent Joseph Frederick, a high school senior of Juneau-Douglas High School

(JDHS), along with other students, brought a 14-foot banner that said BONG HiTS 4
JESUS to a school-sanctioned rally supporting the Olympic Torch Relay that was
passing through their town. Petitioner, JDHS Principal Deborah Morse, asked them to
take it down, but Frederick was the only one who did not comply.
Morse had Frederick suspended for 10 days, on the grounds that the banner
encouraged illegal drug use, which was in violation of school policy.
The Juneau School District Superintendent upheld the suspension (but lowered it to 8
days), and so did the Juneau School District Board of Education.
Frederick then filed suit, alleging that Morse and the school board violated his First
Amendment rights. The District Court ruled in favor of Morse et al, so Frederick
appealed. The Ninth Circuit reversed the decision, holding that there was indeed a
violation of his rights, because the school punished him without demonstrating that his
speech gave rise to a risk of substantial disruption.

ISSUE/S:

WoN Frederick had a First Amendment right to wield his banner

o NO, his constitutionally-protected right to free speech must be viewed in the
context of the schools policies, which expressly prohibit the encouragement of
illegal drug use.
o This occurred during normal school hours, in an event that was sanctioned by the
principal as an approved social event or class trip, which means Frederick was
still bound by the schools rules and regulations.
o 2 possible interpretations of the phrase: 1) take bong hits, smoke marijuana, or
use an illegal drug; 2) bong hits are a good thing, or we take bong hits
There is no meaningful distinction between these that would help
Fredericks case. It could also be construed as gibberish, but this would
ignore the blatant drug reference.

Frederick cites his motive (to get on television), but this doesnt matter in
interpreting the banners content. He also admits that there is not political
or religious message, and thus, he cannot invoke that as a defense.
o Relevant jurisprudence regarding students First Amendment rights:
Tinker: group of students wore armbands to protest the Vietnamese War,
which the school banned (political motive); Court held that that was a
violation of the First Amendment because there was no material and
substantial disruption of work and discipline of the school
Fraser: student made a lewd joke during a school speech, so school
suspended him; Court held that there was no violation of the First
Amendment because they had the authority to impose sanctions and
determine what manner of speech in the classroom is appropriate
This decision shows that the students constitutional rights in
public school are not automatically coextensive with the rights of
adults in other settings. Had it been a speech outside of school,
there would have been a violation of the First Amendment.
First Amendment rights are circumscribed in light of the
special characteristics of the school environment. Tinker is
therefore not absolute.
Kuhlmeier: staff of a school paper sued their school when it didnt let them
publish two articles
This shows that schools may regulate content and speech that
has its imprimatur.
o There is a compelling state interest in deterring drug use by schoolchildren,
which would make the principals action warranted. Congress has declared that it
is part of the schools job to educate students about the danges or illegal drug
use.
WoN that right was so clearly established that the principal may be held liable for
damages
o There was no longer any need for the Court to rule on this issue, because there
was no violation of Fredericks First Amendment right.

Concurring:

J. Thomas: The Tinker decision is without constitutional basis.

o Tinker undermines the traditional authority of teachers to maintain order in public
schools.
o Under the principle of locus parentis, there were no limits on the types of rules
that schools could set for their students, and teachers had tremendous discretion
to impose punishments for violations. While the educational system has
changed, there is no constitutional imperative to require all forms of student
speech in public schools.
J. Alito: Public schools are organs of the state, and when they exercise their authority to
regulate speech, they do so as agents of the state. It is not a delegation of parents
authority, but of the states. Altering free speech rules lies in the special characteristics of

the school setting, and has to do with the need to ensure the students physical safety,
which involves regulating speech.
Concurring and Dissenting:

J. Breyer: The Court should not decide on the First Amendment issue in this case, but
simply hold that qualified immunity bars the students claim for monetary damages.
o Qualified immunity is accorded to government employees, wherein courts are
required to enter judgment in their favor unless the employees conduct violates
clearly established statutory or constitutional rights of which a reasonable
person would have known.

Dissenting:

J. Stevens: The schools interest in protecting students from exposure to speech

reasonably regarded as promoting illegal drug use cannot justify disciplining Frederick
for his attempt to make an ambiguous statement to a TV audience simply because it
contained an oblique reference to drugs.
o Schools are entitled to restrict speech that advocates drug use, but it is another
thing to entirely prohibit an obscure message with a drug theme that may or may
not be tantamount to express advocacy. (This is a nonsense message, not
advocacy.)