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« Parsing the Numbers | Main | The Battle of Currencies » March 20, 2007Students and the Limits of Permissible SpeechOn Monday, the Supreme Court heard oral arguments in Morse v. Frederick (06-278), the "Bong Hits 4 Jesus" case. The factual issues of the case are no less entertaining than its importance. In early 2002, a group of students gathered outside a Juneau high school while the Olympic torch passed through the city. The students also sported a 14-foot banner that read "Bong Hits 4 Jesus." All of the students involved were subsequently reprimanded by school officials. Mr. Frederick brought suit against the school, alleging First Amendment violations. This is the first time that the Court has approached the issue of student speech since Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), wherein the Court stated that it is permissible for school officials to censor student speech when such speech might be deemed "school sponsored." Morse will likely form a quartet of what had been a trio of student speech cases, with the first being Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969). Tinker, a case involving student protest of the Vietnam War (the students wore black armbands during class), in many ways represents the zenith of student speech. Subsequent generations of law students have been taught that "children do not shed their constitutional rights at the schoolhouse gate," and that school officials may not censor student speech unless there is a reasonable belief that such speech will materially disrupt the educational environment. Thus, Morse comes to the Court under unique auspices: Frederick's speech was not school sponsored, nor was the speech on school grounds. Or was it? After all, Frederick's plight is before the Supreme Court precisely because the school responded in the first place. Further,what exactly does "Bong Hits 4 Jesus" mean? Like the hypostatic union of the Son, such a question may never be fully answered, but a cursory reading of the transcript (dial-up warning: large PDF file) leads me to wonder if Justice Alito will part company with Chief Justice Roberts and Justice Scalia on a retreat from Tinker's plateau. As Robert's and Scalia's questions intimate, both appear comfortable with affording local school officials greater latitude in promulgating and enforcing student speech codes. And, mirabile dictu, Justice Breyer seems to be riding down the same trail: "It's pretty hard to run a school where kids go around at public events publicly making a joke out of drugs." The Court is expected to decide the case before summer recess. Posted by Seth Zirkle at March 20, 2007 07:58 PM CommentsAn additional topic that could be in the area-of-effect blast radius of the eventual Morse decision would be the student's ability to challenge publicly portions of the school curriculum, i.e. the creationism/evolution debate. Should the Court hold that schools can limit non-disruptive, yet controversial, speech (And I believe that this case involves a case of non-disruptive controversial speech.), what limits would this place on the ongoing Darwinian v Mosaic Genesis controversy being acted out on, or off, school grounds? And no. I'm not a lawyer. But I play one on teh intarwebs. Posted by: Off Colfax at March 21, 2007 01:34 AM | permalink Since the banner wasn't displayed on school property, or even during school hours, the only way that the school can claim any authority to reprimand Frederick is if the event is a school event. The parade is sponsored by the International Olympic Committee. But is it also concurrently a school event? Let's take a look at school proms. Attendance is optional, and they are often held at off-campus locations. Sounds just like this parade, right? Not so fast. The prom has one more characteristic: the site of the prom has been specifically reserved by the school for that function. Unless the school made an agreement in advance with the property owners to reserve that area exclusively for students who wished to attend, Principle Morse's case looks weak. Posted by: Alan K. Henderson at March 21, 2007 08:09 AM | permalink Duly blogged, with an update to my previous comment: "This requires some clarification. As reported by the NYT [link here], the school's cheerleaders and marching band participated in the parade, thus the parade itself is cosponsored by the school. But the parade viewing is a separate event. If the school didn't officially reserve space for student parade viewing, then the school doesn't have jurisdiction to regulate any kind of activity going on there." Posted by: Alan K. Henderson at March 22, 2007 06:23 PM | permalink Post a comment |
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