Issue Date: April 27, 2007
The issue: Should public school students be allowed to express themselves freely, without fear of punishment from school officials, except in rare, extreme cases? Or should teachers and administrators be allowed to crack down on speech that contradicts a school's stated "educational mission"?
The free-speech rights of public school students have not been addressed by the Supreme Court since 1988. That year, the court ruled that school administrators were allowed to restrict student speech in certain school-sponsored forums--such as student newspapers--as long as that speech fails to correspond with the school's "educational mission." Since that ruling, however, many aspects of student life have changed. Perhaps most significantly, the Internet has made it possible for students to express themselves as they please while reaching a greater audience than past generations of students could have ever imagined.
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Students demonstrate outside the Supreme Court building in Washington, D.C., in March 2007. Inside, the court is hearing oral arguments in the case Morse v. Frederick, which involves a high school senior who was suspended from school for displaying a sign that said "Bong Hits 4 Jesus" at a school event.
Still, it took a four-word slogan, written in duct tape on a 14-foot-long banner in Juneau, Alaska, to bring the issue of students' speech rights back to the Supreme Court. In March 2007, the court heard arguments in the case Morse v. Frederick, which involved a high school senior who unfurled a banner bearing the phrase "Bong Hits 4 Jesus" at a school event. (A bong is a water pipe commonly used to smoke marijuana; when a person inhales smoke from it, he or she is said to be taking a "hit.") The student's principal tore down the banner and suspended the student for 10 days. The student sued the school for infringing upon his First Amendment rights to free speech.
The case received significant attention because of its potential ramifications on students' speech rights. What types of speech should be punishable during school hours? The Supreme Court has established that students' speech can be suppressed if it disrupts schoolwork or is "plainly offensive," but those criteria are open to interpretation, observers note. If a student advocates a controversial opinion, such as the legalization of marijuana, is that statement permissible? Should a student be allowed to wear to school a T-shirt criticizing U.S. government policy, or the U.S. government itself? What if the T-shirt bore a slogan criticizing the school itself? How broad should students' speech rights be?
Supporters of broad speech rights for students argue that even the most controversial statements should be protected by the First Amendment. The Supreme Court thus far has allowed educators to limit speech only if it is clearly disruptive of a school's normal academic routine, or if it is blatantly offensive--all other forms of speech are supported by the Constitution and therefore must be allowed during school hours, supporters maintain. If schools are given too much power to restrict student speech, administrators could end up punishing students for any expressions that are deemed even the slightest bit inappropriate, proponents caution.
Meanwhile, critics of broad free-speech rights for students contend that students are young and impressionable, and need to be protected from some types of speech, including speech that advocates illegal acts such as drug use. Parents trust school officials to restrict potentially dangerous ideas, especially those that blur the lines between right and wrong, opponents maintain. They further argue that if teachers and students are not allowed to censor pro-drug slogans like "Bong Hits 4 Jesus," then they will logically have to permit slogans that advocate other illegal activities, such as murder and rape.
The Supreme Court has ruled on students' speech rights three times. The most important of those rulings, legal experts say, came in the case Tinker v. Des Moines Independent Community School District in 1969. That case involved three public school students from Des Moines, Iowa--two high schoolers and a middle schooler--who in late 1965 wore black armbands to school in protest of U.S. involvement in the Vietnam War (1959-75). Administrators at the schools sent the children home, telling them they could not return until they took off the armbands.
The children's parents sued the school district, claiming that the administrators had infringed on their children's First Amendment rights by restricting their ability to express themselves. In 1968, the Supreme Court listened to both sides of the dispute. Lawyers for the school district argued that the armbands were a distraction to teachers and students. They maintained that public school students had a right to a distraction-free learning environment. The three students' lawyers, however, stated that students had as much a right to express themselves as any other American.
In February 1969, the Supreme Court released its decision in the Tinker case. The justices sided with the students, asserting that students have the right to express themselves while in school, so long as that expression does not "materially [disrupt] classwork or [involve] substantial disorder or invasion of the rights of others." By a 7-2 vote, the Supreme Court decided that the Des Moines students' armbands did not disrupt their class; therefore they should have been allowed to wear the antiwar symbols to school. Representing the majority, Justice Abe Fortas wrote:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.... Clearly, the prohibition of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.
Before 1969, schools were allowed to act in loco parentis, a Latin term meaning "in place of a parent." That meant that schools could regulate students' speech however and whenever they saw fit, much like a child's parent would. But Tinker reversed that long-standing precedent, stripping school administrators and teachers of their status as temporary surrogate parents. The decision mandated that students could be disciplined only if they are clearly disrupting the learning process. The ruling was widely seen as a major victory for students' rights advocates.
Since the landmark Tinker decision, the Supreme Court has ruled on students' speech rights just twice. In both cases, the court has slightly narrowed the scope of the precedent established by Tinker.
In 1986, the Supreme Court heard the case Bethel School District No. 403 v. Fraser. The case involved Matthew Fraser, a senior at Bethel High School in Spanaway, Wash. The controversy began in April 1983, when Fraser made a speech nominating his friend for vice president of the student body. In his speech, Fraser employed a series of sexual double entendres in arguing why his male friend would be a good vice president. Although Fraser never uttered an obscenity in the short speech, the dual meanings of the graphic metaphors he used were clearly understood by the audience of 600 students and teachers. The Supreme Court's account of the case noted that "[s]ome of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed."
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Deborah Morse (far left) listens to her lawyer, Kenneth Starr, speak in front of the Supreme Court building in Washington, D.C., in March 2007. While principal of Juneau-Douglas High School in Juneau, Alaska, Morse tore down a student's banner that read "Bong Hits 4 Jesus." The student eventually sued Morse for infringing upon his free-speech rights.
Fraser was suspended after he admitted that the speech contained deliberate sexual innuendo. In response to his suspension, Fraser's father sued the school district for violating his son's First Amendment rights. The case reached the Supreme Court in 1986. Lawyers for the student argued that Fraser had not used any vulgarities in his speech, and therefore could not be punished under the school's "disruptive-conduct code." The school district's lawyers, however, defended the suspension, maintaining that Fraser's speech contained inappropriate content and that it had "substantially interfered with the educational process."
The Supreme Court ruled, 7-2, in favor of Bethel School District. Chief Justice Warren Burger wrote that the precedent established by the Tinker case did not apply, since the antiwar armbands at the center of that case represented "a nondisruptive, passive expression of a political viewpoint." Meanwhile, the speech in Fraser was "plainly offensive [and] wholly inconsistent with the 'fundamental values' of public school education," Burger added. Moreover, Burger argued, the sexualized speech could prove to be damaging to many of the younger students in the audience--particularly the girls, because of Fraser's glorification of male sexuality. In their decision, the justices concluded that the speech was vulgar and disrupted the learning process at Bethel High School, and therefore was not subject to constitutional protection.
The Supreme Court further narrowed the scope of Tinker in a case it heard two years after handing down its Fraser decision. That case, Hazelwood School District v. Kuhlmeier, was the first to deal with free-speech policies in relation to student newspapers. At Hazelwood High School in St. Louis County, Mo., students enrolled in journalism classes provided all the content of their school's newspaper. During the 1982-83 school year, several journalism students prepared articles about teenage pregnancy and divorce.
As per school policy, the school's journalism teacher submitted the final drafts of the students' stories to Hazelwood's principal before they were published in the paper. The principal objected to the articles on pregnancy and divorce; he argued that the former contained inappropriate references to teenage sexuality and birth control, while the latter included a biased, unduly negative description of a student's father, who was identified by name in the article. The principal decided it was too late in the school year to ask the students to rewrite the articles or rework the newspaper's layout, so he ordered the pages containing the offending articles to be removed from each copy of the paper.
In 1988, the Supreme Court ruled, 5-3, that the principal was justified in preventing the articles from being published, despite the objections of the newspaper's staff. Justice Byron White, writing for the majority, mentioned both Tinker and Fraser in his ruling. Although students did not shed their First Amendment rights at the schoolhouse gate, he opined, schools did have the right to restrict speech not in accordance with their educational mission. In Kuhlmeier, the school newspaper in question was run as part of a journalism class. As White wrote in his majority opinion:
[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
After the Kuhlmeier decision, the Supreme Court heard no cases that could have an impact on students' free-speech rights until March 2007. That month, the court heard arguments in the case that had become commonly referred to as the "Bong Hits 4 Jesus" case.
In January 2002, students at Juneau-Douglas High School in Juneau were dismissed from their afternoon classes to attend a parade taking place outside their school. The parade was in honor of the 2002 Winter Olympics being held in Salt Lake City, Utah, that year. Students and faculty gathered outside the school to watch the ceremonial Olympic torch pass by. The event was privately sponsored and was being televised on local networks. Although the school's pep band and cheerleading squad performed at the rally, it was not technically a school event. Students were, however, expected to report back to classes at the conclusion of the parade.
Joseph Frederick, an 18-year-old senior at Juneau-Douglas, knew that the parade would be on television. In what he later acknowledged was an attempt to get his face on the evening news, Frederick had constructed a 14-foot-long banner bearing the slogan "Bong Hits 4 Jesus." He and his friends assembled across the street from the high school; as the cameras panned to them, the group of high school students unfurled their banner.
However, Deborah Morse, the principal of Juneau-Douglas, noticed the banner, crossed the street and told Frederick to take it down. She argued that the banner was inappropriate. When Frederick refused, citing the First Amendment, Morse responded by tearing down the banner and suspending him for five days. Frederick protested, invoking Thomas Jefferson's famous quote, "Speech limited is speech lost." Morse immediately doubled Frederick's suspension.
Eventually, Frederick sued the school district for violating his right to free speech. In March 2006, a three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco ruled unanimously in his favor. Judge Andrew Kleinfeld, a member of that panel, cited Tinker in his decision to uphold Frederick's right to free speech.
Kleinfeld further maintained that the subsequent Fraser ruling allowing schools to restrict offensive speech did not apply to the slogan "Bong Hits 4 Jesus," which, he said, appeared to advocate marijuana use. "A school cannot censor or punish students' speech merely because the students advocate a position contrary to government policy," he wrote. The 9th Circuit also decided that Morse could be held personally liable for destroying Frederick's banner.
After the 9th Circuit Court handed down its ruling, the Juneau School District filed an appeal with the Supreme Court. In its brief, the district said that if the 9th Circuit Court's ruling were allowed to stand, schools would be forced to tolerate pro-drug messages in the name of free speech, which district representatives said is "wildly wrong." The Juneau School District, aided by the National School Boards Association, urged the Supreme Court to hear the case. After internally debating the matter five times, the court agreed to hear the case, which came to be known as Morse v. Frederick.
The case received substantial media attention when both sides made their oral arguments in front of the Supreme Court in March 2007. Morse was represented by Kenneth Starr, a lawyer and former independent counsel perhaps best known for his investigations into President Bill Clinton (D, 1993-2001)--investigations which eventually led to Clinton's impeachment in 1998. During the Morse v. Frederick hearing, Starr argued that school officials should be allowed to suppress student speech that celebrates the use of illegal drugs. "Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation," Starr argued. He also asserted that public schools should have the right to clamp down on any speech not in conformity with their academic mission.
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Legal scholar Robert Bork, once nominated for the Supreme Court, has spoken out against broad free-speech rights for students. He decries that the "obsession with rights [that] has spread to the general population."
Frederick's lawyer, Douglas Mertz, maintained that the case was not about drug culture at all. Rather, he said, Morse v. Frederick was, at heart, a free-speech case. Frederick himself has asserted that the phrase "Bong Hits 4 Jesus" is meaningless. He says he chose the phrase as part of a free-speech experiment. Before the trial, Frederick told reporters:
To me, ['Bong Hits 4 Jesus'] is absurdly funny. The phrase was not important. I wasn't trying to say anything about religion. I wasn't trying to say anything about drugs. I was just trying to say something. I wanted to use my right to free speech, and I did it.
Frederick's avowedly meaningless phrase--he says he originally saw it printed on a snowboard--has reignited the debate over students' speech rights. Can school officials regulate speech that they disagree with, even if that speech is not widely considered to be offensive? Can students express their views only if those views correspond with their schools' educational missions?
Supporters of broad free-speech rights for students maintain that those rights are supported by the Supreme Court's Tinker decision. That decision stated that school officials can suppress students' speech only if they can provide "evidence that [the suppression] is necessary to avoid material or substantial interference with schoolwork or discipline." If school officials cannot prove that a student's speech interferes with a school's routine, then that speech, by law, must not be impeded, supporters maintain.
Even the expression of views that are not widely shared or that some people might find offensive--such as the apparently pro-marijuana sentiment expressed in the slogan "Bong Hits 4 Jesus"--must be defended, advocates argue. "To the extent that [Frederick's] banner was understood at all," syndicated columnist James Kilpatrick writes, "it presumably urged the legalization of marijuana. So? Unless the Constitution's First Amendment had lost its meaning, this was protected free speech in its most elementary form." In its initial ruling in the "Bong Hits" case, the 9th Circuit Court noted that the debate surrounding the legalization of marijuana had been prominently featured in local media at the time Frederick unfurled his banner, further legitimizing Frederick's slogan as a political statement.
Many conservative Christian groups--including the Alliance Defense Fund, the American Center for Law and Justice and the Christian Legal Society--have been at the forefront of that effort to defend students' free-speech rights. Those groups argue that the Tinker precedent must stand, because it gives religious people and groups the right to express their viewpoints on public school campuses without fear of censorship. Because of Tinker, supporters say, students are free to question the morality of homosexuality or the legitimacy of the theory of evolution; school officials cannot suppress those ideas.
Indeed, supporters say that free-speech laws exist precisely to protect unpopular opinions. It would be dangerous if public schools were allowed to dictate what viewpoints were or were not permissible in a classroom, advocates maintain. Even speech that seems to promote illegal acts should be protected, so long as it does not interfere with schoolwork or discipline, proponents assert.
Many supporters of broad free-speech rights for students argue that a Supreme Court decision favoring school principal Morse in Morse v. Frederick could expand the right of school officials to suppress speech beyond the schoolhouse gate. Frederick displayed his sign across the street from his school, and although the Olympic-torch parade took place during school hours, the 9th Circuit Court determined that teacher supervision at the event was "minimal or nonexistent." Therefore, free-speech supporters say, Juneau-Douglas's principal was censoring Frederick for a statement he made outside of school limits. "[T]here are few First Amendment violations clearer than a government employee's crumpling up someone's banner at a privately sponsored rally on a public street," writes Julie Hilden, a columnist for the legal Web site FindLaw. "That's censorship with a capital 'C.'"
Indeed, many free-speech supporters have expressed fears that, if the Supreme Court sides with Morse in the "Bong Hits" case, speech rights for students could be limited outside the walls of public schools as well as inside. Many supporters have voiced concerns that students could be punished for views they express in outside writing projects, activities, or postings to their personal Web sites or Web logs.
Other defenders of free-speech rights maintain that trying to curtail student speech based on how offensive it may be opens up a can of worms. Indeed, proponents assert, school administrators are often hard-pressed to discern what a statement means, let alone why it is or is not offensive. Morse v. Frederick provides ample evidence for that, supporters say. While Morse maintains that "Bong Hits 4 Jesus" is a pro-drug slogan, that cannot be asserted with any certainty, free-speech supporters argue. Perhaps it is a subtle critique of religion, or a parody of the war on drugs, they suggest. They argue that, like many expressions students come out with, the slogan "Bong Hits 4 Jesus" is not easily interpreted--and therefore should not be easily censored.
Critics of broad free-speech rights for students say that rules must be put in place to protect young people from dangerous ideas, such as the apparent pro-drug message "Bong Hits 4 Jesus." "The First Amendment does not require hamstringing school officials in the fight against illegal drug use by teens," says the antidrug organization Drug Abuse Resistance Education (DARE). In their appeal to the Supreme Court, Morse's lawyers argued that teachers and administrators should be given the ability to restrict speech that they believe is improper, even if they cannot prove that the speech substantially interferes with schoolwork or discipline.
Many opponents argue that opinions do not even belong in the classroom. Since public schools are government funded, critics argue, teachers should go out of their way to maintain an impartial, just-the-facts approach to education--an approach that would carry over to their students. In his dissent in the Tinker decision, Justice Hugo Black rejected the idea that public schools are appropriate platforms for teachers and students to express opinions. He argued that the Tinker decision would strip teachers' and administrators' "power to control pupils."
Indeed, many critics of broad free-speech rights for students maintain that school officials should once again be allowed to act in loco parentis. Student-teacher interactions should be modeled after the child-parent relationship, they maintain; teachers should be able to punish students if they speak or act out of line without fear of being sued for rights infringement. Critics contend that the Tinker decision was poorly reasoned, adding that the Supreme Court should "throw it out the window," in the words of Wall Street Journal columnist Daniel Henninger. "The pious extension of First Amendment speech rights amid Vietnam from adults to students prior to college was a mistake," he insists.
Other critics argue that there is a difference between legitimate free speech--expressing a clear opinion, no matter how unpopular--and exploiting free-speech rights. Speech that falls into the former category should be protected, they maintain, while irresponsible speech should not. Some opponents argue that Frederick's banner simply did not deserve constitutional protection. They assert that "Bong Hits 4 Jesus" was simply an ill-conceived prank perpetrated by an attention-seeking teenager, not the expression of a legitimate opinion in the debate over the legalization of marijuana.
Most critics of Frederick's banner, however, maintain Morse was correct to tear down the "Bong Hits" banner, since it appeared to advocate smoking marijuana, which is illegal. "It was important to take the sign down," says Peggy Cowan, the superintendent of Juneau School District. "Leaving it up would have communicated that it was okay to promote the use of illegal drugs." Parents rely on teachers to reinforce traditional notions of right and wrong during school hours, opponents say; tolerating speech that celebrates an illegal act simply does not make sense in that context. Furthermore, critics argue, the banner violated the terms of both the Tinker and Fraser decisions: It was intended to disrupt a school-related activity and its association of drug use with a religious figure is "plainly offensive," they charge.
Critics also say that if the Supreme Court rules for Frederick in the case Morse v. Frederick, free-speech rights in public schools could eventually get out of control. Opponents maintain that if students are allowed to advocate drug use, they would also have to be allowed to advocate other illegal acts during school hours, such as murder and rape. Such permissiveness could lead to chaotic classrooms where every point of view, no matter how inappropriate or dangerous, would have to be tolerated, critics assert. "Up to this point, we thought that a principal enforcing an antidrug policy was safe to do so," Cowan says. "Now school administrators are walking on eggshells."
Critics also say that clamping down on inappropriate speech is necessary to prevent widespread dissension throughout a school. "When Joseph Frederick gets away with his crude behavior, other students notice, and the school is well on the way to problems with discipline," writes Robert Bork, a fellow at the Hudson Institute, a conservative think tank. Bork links that idea to the "broken windows" theory of policing, which states that the legal system should strictly punish even the most minor of crimes in order to assert its authority and prevent more serious crimes from being committed. If students are allowed to advocate illegal acts during school hours, they might end up committing those acts later, Bork asserts. [See 2006 Quality-of-Life Policing]
The Supreme Court's decision in the Morse v. Frederick case will not be revealed for some time. Most legal observers say that the decision will likely be very close, and that it is difficult to predict which side will win since the circumstances of the case do not lend themselves to a neat division of opinion along a strict liberal/conservative axis.
In order to decide the case, the justices will have to determine whether the slogan "Bong Hits 4 Jesus" violates the criteria laid down in the court's Tinker and Fraser rulings. If a majority of the justices find that Frederick's banner is plainly offensive, or that it substantially disrupted schoolwork or discipline, the court will rule on the side of Morse. The court will also have to determine whether "Bong Hits 4 Jesus" advocates drug use. If so, the court must further decide whether statements advocating illegal acts should be forbidden during school hours.
Meanwhile, in the years following the 2002 "Bong Hits" incident, Morse left her post as Juneau-Douglas's principal to become a Juneau School District administrator. Frederick has graduated from college and moved to China, where he teaches English to Chinese students. He told reporters that he has never brought up the case with those students. "I'm an English teacher," Frederick said. "I don't teach constitutional law."
1) Do you think that high school senior Joseph Frederick deserved to be punished when he held up a banner reading "Bong Hits 4 Jesus" at a school event? Was Frederick's principal justified in tearing it down and suspending him? Explain your point of view.
2) Should students be allowed to express their political views freely in public school, as the 1969 Supreme Court case Tinker v. Des Moines asserted? Or should public schools be less about political opinions and more about the teaching of facts, as Supreme Court Justice Hugo Black wrote in dissenting from the court's majority opinion in Tinker?
3) Oral arguments in the case 2007 Supreme Court case Morse v. Frederick centered largely on whether the slogan "Bong Hits 4 Jesus" advocates the use of illegal drugs. Do you think the slogan advocates marijuana use? If so, do you think Frederick still had the right to display his banner? Why or why not?
4) Read the sidebar on T-shirt slogans. Do you agree with the courts' rulings in the two cases described? Why or why not?
5) With your classmates, conduct a mock trial-complete with prosecutors, defense lawyers and justices-on student's free-speech rights in the following case: A student wore a T-shirt to school depicting a map of the border between the U.S. and Mexico; on the border, there was drawn a large wall separating the two countries, accompanied by the slogan "Illegal Immigrants Stay Out." The student's principal forced him to turn his shirt inside-out, arguing that it was inflammatory toward the school's Mexican population. Did the principal have the right to order him to do so? Or did he violate the student's free-speech rights?
Barnes, Robert. "Justices to Hear Landmark Free-Speech Case." Washington Post, March 13, 2007, A3.
Biskupic, Joan. "High Court Case Tests Limits of Student Speech Rights." USA Today, March 1, 2007, 1A.
Biskupic, Joan. "Justices Debate Student's Suspension for Banner." USA Today, March 20, 2007, 3A.
"'Bong Hits' Tests the Limits of Free Speech." Anchorage Daily News, March 18, 2007, www.adn.com.
Bork, Robert. "'Thanks a Lot.'" National Review, April 16, 2007, 24,
Egelko, Bob. "Court Upholds Student Speech Rights." San Francisco Chronicle, March 13, 2006, www.sfgate.com.
Henninger, Daniel. "Bong Hits 4 Jesus--Explained." Wall Street Journal, March 22, 2007, A16.
Hilden, Julie. "The 'Bong Hits 4 Jesus' Student Speech Case." FindLaw, September 18, 2006, www.findlaw.com.
Trotter, Andrew. "Justices to Hear Free-Speech Case." Education Week, December 13, 2006, 19.
Additional information about students' free-speech rights can be found in the following sources:
Hudson Jr., David. The Silencing of Student Voices: The Challenge to Free Speech in America's Schools. Nashville, Tenn.: First Amendment Center, 2003.
Johnson, John. The Struggle for Student Rights: Tinker v. Des Moines and the 1960s. Lawrence, Kan.: University Press of Kansas, 1997.
Information on how to contact organizations that are either mentioned in the discussion of students' free-speech rights or can provide additional information on the subject is listed below:
First Amendment Center at Vanderbilt University
1207 18th Avenue S.
Nashville, Tenn. 37212
Telephone: (615) 727-1600
National School Boards Association
1680 Duke Street
Alexandria, Va. 22314
Telephone: (703) 838-6722
U.S. Supreme Court
Public Information Officer
Washington, D.C. 20543
Telephone: (202) 479-3211
For further information about the ongoing debate over students' free-speech rights, search for the following words and terms in electronic databases and other publications:
Tinker v. Des Moines
"Bong Hits 4 Jesus"
Bethel School District v. Fraser
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