Morse v. Frederick: the United States Supreme Court Applied the Standard for School-sponsored Speech to Independent Student Speech

• Publication year: 2022

41 Creighton L. Rev. 481. MORSE V. FREDERICK: THE UNITED STATES SUPREME COURT APPLIED THE STANDARD FOR SCHOOL-SPONSORED SPEECH TO INDEPENDENT STUDENT SPEECH

Creighton Law Review

Vol. 41

INTRODUCTION

For over thirty-five years, the United States Supreme Court has recognized students do not relinquish their rights to free speech at the schoolhouse gate.(fn1) The Supreme Court has additionally acknowledged students' constitutional rights in schools are not coextensive with adults' constitutional rights in other settings.(fn2) In the first student speech case balancing these two principles, Tinker v. Des Moines Independent Community School District,(fn3) the Court determined schools could only censor student speech if the speech materially and substantially conflicted with the school's work or with other students' rights.(fn4)

In Morse v. Frederick,(fn5) the United States Supreme Court held that a school official could suppress a student's speech the school official reasonably regarded as advocating illegal drug use.(fn6) In Morse, Juneau-Douglas High School ("JDHS") Principal Deborah Morse ("Morse") punished JDHS senior Joseph Frederick ("Frederick") for holding up a banner at the Olympic Torch Relay that read "Bong Hits 4 Jesus."(fn7) The Court determined Morse reasonably regarded Frederick's sign as advocating illegal drug use because Frederick's banner was susceptible to at least two pro-drug interpretations.(fn8) The Court reasoned that although Frederick's banner could be interpreted as funny, offensive, or meaningless, two interpretations were "bong hits are a good thing" and "we take bong hits," both of which encouraged illegal drug use.(fn9) The Court concluded Morse legally confiscated Frederick's banner and suspended Frederick because Morse reasonably regarded Frederick's banner as advocating illegal drug use.(fn10)

This Note will first examine the facts and holding of Morse.(fn11) This Note will then discuss Supreme Court precedent concerning student speech.(fn12) Further, this Note will demonstrate that the Court in Morse deviated from precedent by allowing schools to restrict student speech based on the speech's content, rather than allowing schools to restrict student speech based on the context and manner in which the student delivered the speech.(fn13) This Note will additionally illustrate that the Court in Morse essentially applied the standard for school-sponsored speech, although the Court stated that Frederick's speech was not school-sponsored.(fn14)

FACTS AND HOLDING

In Morse v. Frederick,(fn15) the Olympic Torch Relay (the "Relay") ran through Juneau, Alaska, on its way to the 2002 Olympic Winter Games in Salt Lake City, Utah.(fn16) Juneau-Douglas High School ("JDHS") permitted its students and staff to leave class to watch the torchbearers.(fn17) JDHS senior Joseph Frederick ("Frederick"), who had not attended school that morning, joined students and other non-students beyond school grounds to watch the Relay.(fn18) When the torchbearers passed by, Frederick and his friends held up a sign that read, "Bong Hits 4 Jesus."(fn19) Frederick stated he intended to catch the television cameras' attention by conveying a message that he thought was funny and meaningless.(fn20)

JDHS Principal Deborah Morse ("Morse") immediately demanded that Frederick take the sign down.(fn21) After Frederick refused to comply, Morse confiscated the sign.(fn22) Morse suspended Frederick for ten days, stating she believed Frederick violated JDHS School Policy No. 5520, which proscribed public expression that encouraged minors to use illegal substances.(fn23) Morse stated she believed the policy applied to Frederick's off-campus actions because School Policy No. 5850 stated that students who attended class trips and social events must comply with the same rules that applied on-campus and during regular school hours.(fn24) Frederick appealed his suspension to the Juneau School District Superintendent, who reduced his suspension to eight days.(fn25)

As a result of his upheld suspension, Frederick sued Morse and the Juneau School Board in the United States District Court for the District of Alaska seeking injunctive and declaratory relief.(fn26) Frederick alleged that Morse violated his First Amendment right to free speech.(fn27) Morse responded that she was exempt from suit based on a qualified immunity defense.(fn28) District Judge John Sedwick reviewed the summary judgment motions that Frederick and Morse filed.(fn29) The district court determined that Morse did not violate Frederick's First Amendment right because Frederick's speech interfered with the school's educational mission.(fn30) The district court further stated that even if Morse had violated Frederick's rights, Morse would have been entitled to qualified immunity because Frederick's right to free speech was not clearly established.(fn31)

The district court determined that Morse did not violate Frederick's right to free speech because Frederick chose a school-sponsored event as a forum at which to display his sign and because his message interfered with the school's educational mission.(fn32) The district court relied upon Bethel School District Number 403 v. Fraser,(fn33) which determined that a school legally suspended a student for his lewd and indecent speech, reasoning that the student's speech interfered with the school's educational mission.(fn34) While evaluating Frederick's claim, the district court stated that the student in Fraser chose a school assembly to deliver an indecent speech that went against the school's basic educational mission by violating established school policy against lewd and obscene language.(fn35) The district court reasoned that Fraser controlled Frederick's speech because Frederick chose a school-sponsored event to display his banner and because Frederick's speech interfered with the school's basic educational mission by violating school policy against advocating illegal drug use.(fn36) The district court noted that the Court's holding in Fraser applied beyond lewd and obscene language.(fn37) The district court determined that, under Fraser, Morse was entitled to confiscate the banner because Frederick's banner interfered with the school's mission.(fn38)

In determining that Morse did not violate Frederick's right to free speech, the district court determined that Frederick's message constituted "speech" under the First Amendment, that the Relay was a school-sponsored event, and that Frederick was a student observer of the Relay.(fn39) The district court determined that Frederick's message constituted "speech" under the First Amendment.(fn40) The district court noted that in order to warrant First Amendment protection, the speaker must intend to convey a comprehensible message.(fn41) The district court reasoned that Frederick intended to communicate a message, even though Frederick stated he believed his banner was meaningless, to determine Frederick's banner constituted "speech" under the First Amendment.(fn42) The district court reasoned the Relay constituted a school-sponsored event because the event occurred during school hours, and teachers supervised students while they attended the Relay.(fn43) Additionally, the district court stated Frederick was a part of the school-sponsored event, despite his tardiness, because Frederick was under the school's authority when he joined the Relay.(fn44) Thus, the district court determined Frederick's case would be analyzed as a First Amendment student speech case because Frederick's banner constituted "speech" under the First Amendment, the Relay was a school-sponsored event, and Frederick was a student observer of the Relay.(fn45)

The district court further determined that Morse was entitled to qualified immunity because Frederick's First Amendment right was not clearly established at the time of the event.(fn46) The district court stated that public school officials are entitled to qualified immunity unless their actions violate clearly established constitutional rights.(fn47) Frederick alleged that Tinker v. Des Moines Independent Community School District(fn48) clearly established his First Amendment right.(fn49) The district court noted Tinker, which held that a school could not constitutionally censor armbands students wore to protest the Vietnam War without showing that wearing the armbands would substantially disrupt the school's work.(fn50) The district court noted the speech in Tinker did not disrupt the school's work.(fn51) The district court stated that Morse could reasonably believe Fraser controlled, rather than Tinker, because like Fraser's nominating speech, Frederick's banner intruded upon the school's educational mission.(fn52) The district court granted Morse qualified immunity because there were no published precedent on point that clearly established Frederick's right to free speech in this instance.(fn53) The district court stated that Morse and the Juneau School Board were additionally immune from damages based on an Alaska statute that immunized school officials from civil liability when they acted within the scope of their employment to enforce a school disciplinary policy.(fn54) Thus, the district court stated two grounds for declaring that Morse was not liable to Frederick; first, Morse did not violate Frederick's First Amendment right because Frederick's speech interfered with the school's educational mission, and...