NEWS MEDIA UPDATE · U.S. SUPREME COURT · Prior Restraints · June 25, 2007
Court upholds regulation of student’s ‘Bong Hits’ banner
June 25, 2007 · A high school principal who disciplined a student for displaying a banner reading “Bong Hits 4 Jesus” did not violate his free speech rights, the U.S. Supreme Court ruled today.
The court rejected the U.S. government’s argument that school administrators should have wide latitude to curb speech that is contrary to a school’s “educational mission.” But the justices created a new exception to the landmark 1969 decision Tinker v. Des Moines Independent Community School District in which the court upheld the free speech rights of students who wore black armbands to school to protest the Vietnam War.
Writing for the majority, Chief Justice John Roberts noted that student Joseph Frederick, who sued over the suspension he received for unfurling the sign as the Olympic torch relay passed by his Alaska high school, has said the “Bong Hits 4 Jesus” slogan was “meaningless.” But Roberts said principal Deborah Morse could have plausibly interpreted the banner as promoting illegal drug use and therefore was justified in restricting it, given the schools’ interest in deterring drug use.
Two of the justices that formed part of the 5-4 majority wrote separately to emphasize the narrow scope of the ruling.
Justice Samuel Alito, joined by Justice Anthony Kennedy, said he signed on to the majority opinion believing it says only that schools officials may restrict speech reasonably seen as promoting drug use. They also said the court’s decision did not support any restrictions on speech that touched on political or social issues, including the war on drugs or legalizing marijuana — debates that three dissenters feared could be hindered by the decision.
Alito explicitly rejected the argument that schools could censor speech inconsistent with their educational missions, saying that notion “strikes at the heart of the First Amendment.”
He said any regulation of student speech must be based on a “special characteristic of the school setting” — the characteristic in this case being the threat to student safety. Therefore, he said, schools may censor student speech “advocating illegal drug use.”
“But I regard such regulation as standing at the far reaches of what the First Amendment permits,” Alito wrote. “I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.”
Justice John Paul Stevens wrote in dissent that student speech is constitutionally protected if the “message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students.”
“This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding — indeed, lauding — a school’s decision to punish Frederick for expressing a view with which it disagreed,” wrote Stevens, who was joined by Justices Ruth Bader Ginsburg and David Souter.
Stevens criticized the majority for “inventing out of whole cloth” a drug advocacy exception to the First Amendment and cast doubt on the court’s finding that the banner could really be interpreted as a pro-drug message, drawing on the Tinker decision’s famous statement that “students do not shed their constitutional rights at the schoolhouse gate.”
“Most students, however, do not shed their brains at the schoolhouse gate,” Stevens wrote, “and most students know dumb advocacy when they see it. . .That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of this position, and suggests that the principle it articulates has no stopping point.”
All of the justices agreed Morse should not have to pay damages, as a federal appeals court in San Francisco (9th Cir.) had ruled. But Justice Stephen Breyer alone wanted to avoid resolving the free speech issue and send the case back to a lower court.
Justice Clarence Thomas wrote separately to say that he would prefer overturning the Tinker decision than “adding to the patchwork of exceptions.”
Today’s decision marks the first significant student speech case before the high court since the 1980s, when the court in two separate decisions upheld restrictions on a school-sponsored student newspaper and on vulgar speech during a school assembly.
A variety of organizations filed friend-of-the-court briefs supporting Frederick, including the Student Press Law Center and other free speech groups, as well as conservative groups that feared a ruling against Frederick could be used to curtail speech of students expressing their religious beliefs. Among those supporting the principal were the U.S. government and the school administrators association.
(Morse v. Frederick) — RG