SCOTUS and the "Bong Hits 4 Jesus" case!
There is a case that is being argued before the U. S. Supreme Court as I write. The case is Morse v. Frederick (06-278). The case arose out of the following facts: Juneau, Alaska, high school students were released from school to go and view a school-sponsored, faculty-supervised parade. One of the students, Joseph Frederick, "pulled a prank" and stood across the street from the school grounds and unfurled a "Bong Hits 4 Jesus" banner. The school principal found nothing funny about the "prank" and suspended him for 10 days. Frederick sued and the Ninth Circuit Court of Appeals in, Morse V. Frederick, 439 F.3d 1114 (9th Cir 03/10/2006), relying on Tinker v. Des Moines Independent Community School District, 393 US 503 (1969)(where the U. S. Supreme Court held that a prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments), found that the school violated Morse's freedom of speech. The issues before SCOTUS now is whether 1) Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events; and, 2) Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. § 1983 when, pursuant to the school district’s policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.
The SCOTUS is not expected to rule before its fall recess. However, I predict the Court will find, applying Tinker principles, that no political speech deserving of protection was uttered by Joseph Morse; and that prohibiting his "Bong" expression is necessary to avoid substantial interference with school discipline or the rights of others. Also, the school principal will not be found liable for any money damages for the disciplinary action. What do you think?
The SCOTUS is not expected to rule before its fall recess. However, I predict the Court will find, applying Tinker principles, that no political speech deserving of protection was uttered by Joseph Morse; and that prohibiting his "Bong" expression is necessary to avoid substantial interference with school discipline or the rights of others. Also, the school principal will not be found liable for any money damages for the disciplinary action. What do you think?
Labels: Justice, Popular culture, U. S. Supreme Court
posted by KYJurisDoctor at 1:56 PM
4 Comments:
If the court accepts the factual premise that this was a school-sponsored, faculty-supervised event, I agree with your prediction (though I would expect dissents from Ginsburg and Breyer, and maybe more).
But it may not accept that premise. The appeals court's opinion acknowledged that there was no faculty supervision, that the students were "released" rather than on a field trip, the activity in question did not take place in school or on school grounds, and the event was not school sponsored. One amicus brief had urged the court to treat the case as a run-of-the-mill First Amendment case, and the court noted that, if it were to do so, the result would be "easy."
It gave a very unpersuasive explanation of why it treated this as a "student speech" case, essentially saying that the teachers could have exercised more authority had they chosen to do so, and that school was technically still in session.
I would not be surprised if a majority of the Supreme Court resolves the case by saying (1) this is not a "student speech" case, and should be analyzed under regular First Amendment principles rather than the "Tinker" student speech doctrine; (2) Morse was therefore within his rights to display the banner; (3) no further precedent is set for those cases where students are within the jurisdiction of the school; and (4) the principal is immune from personal liability.
I seem to remember Chief Justice Roberts, in his confirmation hearings, saying he thought that cases should generally be decided on the narrowest possible grounds. Here's his chance to prove it: dispose of this case on narrow (and correct) grounds, or unnecessarily muddy the waters further on the subject of student speech rights.
Great analysis on your part. Here is a transcript of today's oral argument before SCOTUS. I just don't see how the Justices can conclude that the student event was not a "school-sponsored" event (regardless of faculty supervision) and ignore "Tinker" w/o overruling it!
Organizations filing amicus briefs in favor of Frederick's claim are: the Alliance Defense Fund, the American Booksellers Foundation for Free Expression, the American Center for Law and Justice, the Christian Legal Society, the Drug Policy Alliance, the Lambda Legal Defense and Education Fund, Inc., Liberty Counsel, the Liberty Legal Institute, The First Amendment Project, Feminists for Free Expression, The Freedom to Read Foundation, the National Coalition Against Censorship, The Rutherford Institute, the Student Press Law Center, Students for Sensible Drug Policy and The Thomas Jefferson Center for the Protection of Free Expression.
Organizations and individuals filing in support of the school district's claim are: the American Association of School Administrators, DARE America, Drug Free America Foundation, Inc., General Barry R. McCaffrey, Hon. William J. Bennett, the National Association of Secondary School Principals, National Families in Action, the National School Boards Association, Save Our Society from Drugs and Solicitor General Paul Clement.
Another opinion.
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