Bong Hits 4 Jesus? | Morse v. Frederick

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In the fourth episode of Supreme Court Briefs, Mr. Beat goes back to 2002 to look at darn high schoolers causing mischief with a banner about marijuana. Is it their First Amendment right or are they disrupting school?

Joseph Frederick, a student at Juneau-Douglas High School, excitedly waited with his friends for the Olympic Torch relay runner, who would be coming by at any moment. Despite the cold, the school had decided to have a small field trip to let its students see the Olympic relay pass through on its way to the games down in Salt Lake City. Frederick and the other students gathered across the street from the school. They were surrounded by the media, also there to capture the moment on film.

As the Olympic relay approached, Joseph and his friends revealed a 14-foot banner that read “Bong Hits 4 Jesus.” The media captured the whole thing on film. As soon as she noticed it, the principal, Deborah Morse, immediately came over and told the students to take it down. After Joseph refused, she snatched the banner away and later suspended Joseph for ten days. Morse cited the school’s anti-drug policy, as the banner clearly referenced marijuana. Joseph later recalled that the original suspension was five days, but Morse doubled it after he quoted Thomas Jefferson concerning free speech. He also argued the banner was never about promoting drug use. He just wanted to attract the attention of the media.

Well, I’d say he succeeded. Helped by the American Civil Liberties Union, Joseph Frederick sued the principal and the Juneau school district, arguing that he was denied freedom of speech as protected by the First Amendment to the Constitution. He also wanted to clear his name and sought monetary awards for the trouble of going through the process.

The United States District Court for the District of Alaska dismissed Joseph’s case, based on the legal precedent set by the Supreme Court in Bethel School District v. Fraser. In that case, the Court ruled that vulgar or offensive speech could be banned in schools.

However, the Ninth Circuit Court reversed the decision of the District Court. They unanimously argued that Joseph and his friends absolutely had the right to hold the banner, if it was actually on school grounds, not across the street from school grounds. They claimed the Fraser case didn’t apply here. They said Tinker v. Des Moines Independent Community School District, a Supreme Court case that protected student political speech, applied here instead. They went on to argue that what Joseph did wasn’t as offensive and more political in nature than the vulgar speech seen in the Fraser case. It also didn’t cause a disturbance at the school.

Eventually, the case would up going to the Supreme Court anyway. They heard oral arguments on March 19, 2007. Ken Starr, the famous lawyer who heavily investigated the Clinton administration during the 1990s, spoke on behalf of the school district. He said, “To promote drugs is utterly inconsistent with the educational mission of the school. The court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission.”

Joseph Frederick’s lawyer, Douglas Mertz, argued that the case was about free speech, and he emphasized that the torch relay was not school sponsored, nor was the banner on school property. In fact, Joseph had apparently not been to school the entire day.

Regardless, the Court apparently viewed the event as a school event. It ruled 5-4 in the school board’s favor, arguing that the First Amendment does not prevent schools from limiting speech at a school event, especially when it promoted the use of illegal drugs.

Chief Justice John Roberts classified the banner as “school speech,” which protects student speech due to the First Amendment. However, it also protected the school’s right to limit student speech if it is disruptive. He cited Bethel School District v. Fraser and another Supreme Court case, Hazelwood School District v. Kuhlmeier, to back up this legal precedent. In other words, this wasn’t about protecting political protest, this was about protecting students from the dangers of drug abuse.

Justice Clarence Thomas not only agreed, but added that student speech should be limited further, arguing that the Tinker v. Des Moines Independent Community School District case should be overturned.

Morse v. Frederick further restricted student speech, but it didn’t solve the debate. Many still demand more protection of school speech.