Notable Items:

Added constraint on student speech based upon school-sanctioned and school-supervised event, regardless of location.
Added constraint on student speech based upon content: illegal drug use.
Limits on free speech constraints: viewpoint discrimination; "mere advocacy" vs "incitement to imminent lawless action" (Stevens dissent)
Tinker criterion limited by
  • Tinker v. Des Moines Independent Community School District (1969)
  • Bethel School District v. Fraser (1986)
  • Hazelwood-Kuhlmeier (1988)
  • Morse v. Frederick (2007) regarding illegal drug use. Alito sets this as as standing at the far reaches of what [restriction of student speech] the First Amendment permits.
  • Mahanoy Area School District v. B. L. (2020)
    Petitioner: Deborah Morse, principal of Juneau-Douglas High School (JDHS)
    Respondent: Joseph Frederick, student at Juneau-Douglas High School (JDHS)
    Venue: US Supreme Court upon writ of certiorari to the United States Court of Appeals for the Ninth Circuit
    Opinion of the Court: Morse v. Frederick (2007)

    Material Facts:

    Procedural History:

    Petitioner's Claim(s):


    1. "whether Frederick had a First Amendment right to wield his banner, and, "
    2. "if so, whether that right was so clearly established that the principal may be held liable for damages. 549 U. S. ___ (2006)."

    Holding(s) and Disposition:

    We resolve the first question against Frederick, and therefore have no occasion to reach the second. Held: Reversed "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers [promoting illegal drug use]."
    Disposition: Remanded to United States Court of Appeals for the Ninth Circuit for further proceedings consistent with this opinion.


    Roberts Majority Opinion (Scalia, Kennedy, Thomas, Alito)

    Roberts bases the school's ability to prohibit the instant speech on recognizing "that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest."

    Thomas concurrance

    Alito Concurrance (Kennedy)

    Breyer conurring in part and dissenting in part

    Stevens dissent (Souter, Ginsburg)

    Full Recounting of Facts

    • "On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah" passing in front of JDHS.
    • "Petitioner Deborah Morse, the school principal, decided to permit staff and students to participate in the Torch Relay as an approved social event or class trip."
    • Observation of the torch relay was a school-sanctioned and school-supervised (not sponsored) event taking place on the public sidewalks.
    • "As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.”"
    • "Principal Morse immediately crossed the street and demanded that the banner be taken down."
    • Respondant refused to do so.
    • "Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days."
    • Petitioner "thought it [the banner] encouraged illegal drug use, in violation of established school policy."
    • "Juneau School Board Policy No. 5850 subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program."
    • "Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld"
    • Superintendent stated that respondant " “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.” "
    • Moreover "speech was potentially disruptive to the event and clearly disruptive of and inconsistent with the school’s educational mission to educate students about the dangers of illegal drugs and to discourage their use.” "
    • "Frederick then filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights."
    • Respondant sought "declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney’s fees."
    • "The District Court granted summary judgment for the school board and Morse, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s First Amendment rights."
    • "The Ninth Circuit [reversing] held that the principal’s actions violated the First Amendment, and that the student could sue the principal for damages."
    • Ninth Circuit: "a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a “risk of substantial disruption.” "
    • "The court further concluded that Frederick’s right to display his banner was so “clearly established” that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity."
    • Material Facts (above)

    Majority Full Argument

    • "we reject Frederick’s argument that this is not a school speech case"
    • "The event occurred during normal school hours. ... sanctioned by Principal Morse “as an approved social event or class trip,” Teachers and administrators were interspersed among the students and charged with supervising them."
    • Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.”
    • "... Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."
    • "... “display of the banner would be construed by students, ... and others witnessing the display of the banner, as advocating or promoting illegal drug use”—in violation of school policy. "
    • "We agree with Morse. At least two interpretations of the words on the banner ... First, the phrase could be interpreted as an imperative ... Alternatively, the phrase could be viewed as celebrating drug use ...."
    • "... this is plainly not a case about political debate over the criminalization of drug use or possession."
    • "Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” "
    • In Tinker, "The students sought to engage in political speech, ..." Not in this case. "But not even Frederick argues that the banner conveys any sort of political or religious message."
    • "For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” " Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)
    • "Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. Whatever approach Fraser employed, it certainly did not conduct the “substantial disruption” analysis prescribed by Tinker, supra, at 514."
    • [Regarding qualified immunity:]
    • "Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest."
    • "Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use."
    • "Thousands of school boards throughout the country—including JDHS—have adopted policies aimed at effectuating this message. "
    • Majority Rationale (above)

    Alito Concurrance Full Argument

    • I join the opinion of the Court 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.”
    • [Tinker] does not set out the only ground on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings.
    • But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court.
    • [Tinker] permits the regulation of student speech that threatens a concrete and “substantial disruption,” Tinker v. Des Moines Independent Community School District (1969)
    • [Bethel] permits the regulation of speech that is delivered in a lewd or vulgar manner as part of a middle school program; Bethel School District v. Fraser (1986)
    • [Kuhlmeier] allows a school to regulate what is in essence the school’s own speech Hazelwood-Kuhlmeier (1988)
    • [Morse] allows the restriction of speech advocating illegal drug use; Morse v. Frederick (2007)
    • I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.
    • Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.”
    • Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school.
    • It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis.
    • For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.
    • The special characteristic that is relevant in this case is the threat to the physical safety of students.
    • In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam).
    • But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence.
    • And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts.
    • Speech advocating illegal drug use poses a threat to student safety that is just as serious, ....
    • ... the public schools may ban speech advocating illegal drug use.
    • But I regard such regulation as standing at the far reaches of what the First Amendment permits.
    • Alito Concurrance (above)

    Stevens Dissent Full Argument

    • On January 24, 2002, the Olympic Torch Relay gave those Alaska residents a rare chance to appear on national television.
    • Moreover, concern about a nationwide evaluation of the conduct of the JDHS student body would have justified the principal’s decision to remove an attention-grabbing 14-foot banner, even if it had merely proclaimed “Glaciers Melt!” (prophetic)
    • I agree with the Court that the principal should not be held liable for pulling down Frederick’s banner. See Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).
    • I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs.
    • ... two uncontroversial propositions: first, that the constitutional rights of students in school settings are not coextensive with the rights of adults; and second, that deterring drug use by schoolchildren is a valid and terribly important interest, ....
    • As to the first ... the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere.
    • As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.”
    • But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.
    • In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither ....
    • First, censorship based on the content of speech, particularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification: ... Viewpoint discrimination is thus an egregious form of content discrimination. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829 (1995)
    • Second, punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid. See Brandenburg v. Ohio, 395 U. S. 444, 449 (1969) (per curiam) (distinguishing “mere advocacy” of illegal conduct from “incitement to imminent lawless action”).
    • “[S]chools [may] restrict student expression that they reasonably regard as promoting illegal drug use”. The Court’s test invites stark viewpoint discrimination.
    • “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989)
    • But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” Whitney v. California, 274 U. S. 357, 376 (1927) (Brandeis, J., concurring).
    • ... carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.
    • ... relationship between schools and students “is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655 (1995)
    • ... it is possible that our rigid imminence requirement ought to be relaxed at schools. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)
    • It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy. Masses Publishing Co. v. Patten, 244 F. 535, 540, 541 (SDNY 1917)
    • ... JDHS must show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.
    • But instead of demanding that the school make such a showing, the Court punts.
    • To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility.
    • That would “pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.” Thomas v. Collins, 323 U. S. 516 (1945) at 535. li> ... “BONG HiTS 4 JESUS” .... This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that.
    • “when it comes to defining what speech qualifies as the functional equivalent of express advocacy … we give the benefit of the doubt to speech, not censorship,” Federal Election Comm’n v. Wisconsin Right to Life, Inc.,<./i> 551 U. S. ___ (2007)
    • Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.
    • Majority Rationale (above)