UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 1FALL 2008
ARTICLES
Misuse and Abuse of Morse v. Frederick by Lower Courts: Stretching the High Court's Ruling Too Far to Censor Student Expression
Clay Calvert(fn*)
I. Introduction
In June 2007, the United States Supreme Court handed down a fractured decision in Morse v. Frederick(fn1) rejecting a First Amendment-based(fn2) student speech claim and allowing public high school officials to censor expression that reasonably can be interpreted as promoting and celebrating illegal drug use.(fn3) The holding was quickly viewed by some legal commentators as very narrow. In particular, it was perceived as being constricted and limited by both its quirky, if not unique, set of facts about the display of a banner conveying the message "Bong Hits 4 Jesus"(fn4) and by the critical concurring opinion of Justices Samuel Alito and Anthony Kennedy that provided the five-person majority with two vital votes.(fn5) For instance, John W. Whitehead, president of the Rutherford Institute, told the Washington Post that "the decision should have a limited effect because it applies only to student speech that promotes illegal drug use."(fn6) Similarly, Susan Goldammer, an attorney for the Missouri School Boards' Association, observed that "[t]he court explains this decision is narrowly tailored toward illegal drugs."(fn7) In fact, the author of this law journal article, along with a colleague, opined in an August 2007 commentary that "the case may be considered a minor victory for schools-limited to the narrow circumstances of curtailing decidedly pro-drug messages that lack a political component."(fn8) In a nutshell, the Morse ruling appeared relatively inconsequential for future student expression battles, cabined by its peculiar facts.
Such a belief seemed to make perfect sense at the time. The opinion of the Court, authored by Chief Justice John Roberts, narrowly framed the freedom of expression issue before it to be "whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use."(fn9) Roberts focused heavily on how "[d]rug abuse can cause severe and permanent damage to the health and well-being of young people,"(fn10) and made no mention whatsoever to schoolyard violence or school shootings. He then concluded in an equally narrow fashion "that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."(fn11)
Perhaps more importantly, concurring Justices Alito and Kennedy wrote that they joined the fragile majority opinion only on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use.(fn12)
Flying in the face of such limiting language, however, some lower federal courts are broadly interpreting the scope of the Morse ruling and, ironically, the crucial Alito-Kennedy concurrence, to censor speech that has absolutely nothing to do with illegal drug use but that has everything to do with subjects such as violence and homophobic expression. Most notably, in November 2007, the United States Court of Appeals for the Fifth Circuit, in Ponce v. Socorro Independent School District,(fn13) relied on what it called "Justice Alito's concurring, and controlling, opinion"(fn14) in Morse to stand for a very broad, pro-censorship principle-that "speech advocating a harm that is demonstrably grave and that derives that gravity from the 'special danger' to the physical safety of students arising from the school environment is unprotected."(fn15) The Fifth Circuit used its new-fangled, physical-safety principle in Ponce to hold that a "Morse analysis is appropriate"(fn16)-rather than the traditional, well-established and more rigorous "substantial disruption"(fn17) standard from the high court's 1969 ruling in Tinker v. Des Moines Independent Community School District(fn18) - when the student speech at issue "threatens a Columbine-style attack(fn19) on a school."(fn20) The Fifth Circuit wrote: If school administrators are permitted to prohibit student speech that advocates illegal drug use because "illegal drug use presents a grave and in many ways unique threat to the physical safety of students" ... then it defies logical extrapolation to hold school administrators to a stricter standard with respect to speech that gravely and uniquely threatens violence, including massive deaths, to the school population as a whole.(fn21)
Put differently and more bluntly, the Fifth Circuit's decision in Ponce allows school administrators to sidestep, avoid, and otherwise dodge the application of the Tinker standard when the student speech threatens mass violence. By the court's reasoning, Justice Alito's concurring opinion in Morse makes it clear that "some harms are in fact so great in the school setting that requiring a school administrator to evaluate their disruptive potential is unnecessary."(fn22) The Tinker standard, the Fifth Circuit suggested, was simply too complex and/or problematic to be applied to student expression referencing mass-scale violence. As it wrote, "[s]chool administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance."(fn23)
The years-of-litigation quip may be a thinly veiled reference to the fact that the United States Court of Appeals for the Ninth Circuit had, prior to the Supreme Court's ruling, applied the Tinker standard in Morse to hold principal Deborah Morse personally liable for her decision to punish student Joseph Frederick for his display of the "Bong Hits 4 Jesus" banner.(fn24) The Ninth Circuit's ruling came down in March 2006,(fn25) more than four years after Frederick unfurled his banner in January 2002.(fn26)
In essence, the Fifth Circuit ripped the narrow concurring opinion of Justices Alito and Kennedy(fn27) from its factual moorings and took it for a judicial joyride down a slippery slope of censorship that allows for squelching any student speech posing a potential threat to the physical safety of students. Exacerbating the problem is the fact that the Fifth Circuit is not alone in giving such a broad interpretation to the ruling in Morse. Specifically, the United States Court of Appeals for the Eleventh Circuit, in a July 2007 opinion centering on student speech that referenced violent conduct, wrote:Recently, in Morse, the Supreme Court broadly held that "[t]he special characteristics of the school environment and the governmental interest in stopping student drug abuse ... allow schools to restrict student expression that they reasonably regard as promoting illegal drug use." That same rationale applies equally, if not more strongly, to speech reasonably construed as a threat of school violence.(fm28)
The Eleventh Circuit's employment of the word "broadly" in the case of Boim v. Fulton County School District to describe the ruling in Morse seems to be a strategic linguistic device to make the Supreme Court's reasoning stretch seamlessly from the domain of drugs to the realm of violence. This misappropriation of the Morse ruling appeared, however, to bother one member of the Eleventh Circuit. Judge Susan Herrell Black wrote a two-sentence concurring opinion in Boim to express her view that Tinker-not Morse-was the correct precedent to apply. Citing Tinker and writing that she was "applying the Tinker standard," Black wrote: Although I agree with the result, I would have limited the inquiry in this case to whether Rachel Boim's story and the circumstances surrounding it would cause school officials to reasonably anticipate a substantial disruption of or material interference "with the work of the school or impinge upon the rights of other students."(fn29)
The Morse holding has also been liberally interpreted at the trial court level. In particular, a federal district court in southern California wrote in February 2008 that Morse "affirms that school officials have a duty to protect students, as young as fourteen and fifteen years of age, from degrading acts or expressions that promote injury to the student's [sic] physical, emotional or psychological well-being and development which, in turn, adversely impacts the school's mission to educate them."(fn30) Such an expansive interpretation of the reasoning in Morse clearly does not limit the Supreme Court's ruling to speech advocating illegal drug use, but extends it well beyond to sweep up "degrading acts or expressions."(fn31) In that case, the speech at issue was deemed by United States District Court Judge John A. Houston to be "disparaging of, and emotionally and psychologically damaging to, homosexual students and students in the midst of developing their sexual orientation in a ninth through twelfth grade, public school...
