One morning in Juneau, Alaska, during the 2002 Winter Olympics, Deborah Morse, principal of Juneau-Douglas High School, released her students early so they could watch the torch runner pass in front of the school. When the TV cameras began to roll as the torch neared, a student of the school who was standing on the opposite side of the street unfurled a 14-foot banner that read “BONG HITS 4 JESUS.” Horrified, Morse asked the student, Joseph Frederick, to take down the banner, but when he refused to comply and asserted his First Amendment rights, she tore the banner from him, crumpled it and suspended him for five days (which later became 10 after he reportedly quoted Thomas Jefferson in her office). Frederick said the banner was merely a nonsensical publicity stunt, but Morse said it was a pro-drug message that undermined the school’s position against drug use. Frederick sued.
These are the facts of the case outlined by 9th U.S. Circuit Court of Appeals. Frederick’s case has gone all the way to the Supreme Court. Arguments on Morse v. Frederick (127 S. Ct. 722) began in mid-March. This case could be monumental; it may weaken constitutional protection for student freedom of speech by allowing schools to punish any off-campus speech it arbitrarily deems “disruptive.”
Kenneth Starr, who you may remember from the Lewinsky/Clinton affair, is representing Morse. According to First Amendment Center correspondent Tony Mauro, Starr is arguing that a “drug war” exception to the First Amendment for student freedom of speech should be established. Disconcertingly, the conservative Court may not only agree with Starr, but it may also endorse broader mandates for censoring student speech that promotes illegal action in general – even when it is generated off-campus.
If Starr can persuade the court to make an exception to the First Amendment for drugs, the ruling can easily be used to allow schools to suppress speech merely because it conflicts with whatever “educational mission” the school defines for itself.
And what about the entirely novel argument that off-campus speech is subject to regulation? A ruling allowing such regulation would be in direct conflict with 50 years of court precedent establishing that students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” In the three famous cases that led the Supreme Court to this determination, the justices decided that student speech is constitutionally protected unless it is “plainly offensive” [i.e. lewd and sexual], is part of a school-sponsored activity or “disrupts the good order” of the school’s proper functioning. None of these criteria apply to Frederick’s case, and the case should’ve stopped at the 9th Circuit.
But it didn’t, and the Supreme Court could be opening another can of worms. What about Internet speech? If the Court decides that students can be punished for off-campus speech that conflicts with educational goals, can a student be punished for speech that originates on his own computer, beyond school grounds? Could Morse have suspended Frederick if she had found the phrase “BONG HITS 4 JESUS” on his MySpace account? The answer appears to be yes. In a bizarre and troubling series of court cases, students are having their online speech restricted. At least half a dozen cases involving suspensions and expulsions for material found on MySpace accounts have reached federal courts in the past few years, and the judges have handed down mixed messages in their verdicts – with good reason. There is as yet no guiding principle to help the courts decide where the digital “schoolhouse gate” ends, and it is unlikely that this case will clarify matters. It is more likely that a bad ruling will give the schools so much clout that more lawsuits involving the newest frontier of free speech will be inevitable.
A drug war exception to free speech protection would constitute an appalling abuse of judicial power. And since the Supreme Court sets legal precedent for all the lower courts, a regressive decision will give schools carte blanche to suppress speech students make in their capacity as citizens. Such a decision should be avoided at all costs.
