U.S. Supreme Court Votes Against Banner - Shows Divide on Speech in Schools

The New York Times reports:

The Alaska high school student who unfurled a 14-foot banner with the odd message “Bong Hits 4 Jesus” insisted that it was a banner about nothing, a prank designed to get him and his friends on television as the Olympic torch parade went through Juneau en route to the 2002 Winter Games in Salt Lake City.

The school’s principal insisted, to the contrary, that the banner advocated, or at least celebrated, illegal drug use, and that the student, Joseph Frederick, should be punished for displaying it. She suspended him for 10 days.

On Monday, by a narrow margin, the Supreme Court backed the principal in a decision that showed the court deeply split over what weight to give to free speech in public schools.

Six justices voted to overturn a federal appeals court’s ruling that left the principal, Deborah Morse, liable for damages for violating Mr. Frederick’s First Amendment rights.

Chief Justice John G. Roberts Jr. spoke, at least nominally, for five of the six. He said for the court that Ms. Morse’s reaction to the banner, which was displayed off school property but at a school-sponsored event, was a reasonable one that did not violate the Constitution.

While the banner might have been nothing but “gibberish,” the chief justice said, it was reasonable for the principal, who “had to decide to act — or not act — on the spot,” to decide both that it promoted illegal drug use and that “failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use.”

He added, “The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.”

Four other justices, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel A. Alito Jr., signed the chief justice’s opinion, although Justice Thomas took a much different approach. He said that Mr. Frederick had no First Amendment rights to violate.

“In light of the history of American public education,” Justice Thomas said, “it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.” The court’s precedents had become incoherent, he said, adding, “I am afraid that our jurisprudence now says that students have a right to speak in school except when they don’t.”

The sixth justice, Stephen G. Breyer, did not sign the chief justice’s opinion, but wrote separately to say that the First Amendment issue was sufficiently cloudy that the court should have avoided deciding it. Instead, he said, the court should have ruled in the principal’s favor on the alternative ground that she was entitled to immunity from the student’s lawsuit.

Under the court’s doctrine of “qualified immunity,” government officials may not be sued for damages unless they have violated “clearly established” rights “of which a reasonable person would have known.”

There were additional shades of opinion within the chief justice’s majority. Justice Alito, joined by Justice Kennedy, wrote separately to emphasize what they said was the narrowness of the court’s holding. They said the decision should be understood as limited to speech advocating drug use, and noted that the court had not endorsed the much broader argument, put forward by the Bush administration, that school officials could censor speech that interfered with a school’s “educational mission.”

The breadth of that argument had alarmed religious conservatives, on the ground that school officials would get a license to enforce political correctness. Justice Alito, who had expressed a similar concern as an appeals court judge, said that the “educational mission” argument “strikes at the very heart of the First Amendment” by allowing school officials to “suppress speech on political and social issues based on disagreement with the viewpoint expressed.”

Writing for the four dissenters, Justice John Paul Stevens said that even limited to drugs, the majority opinion distorted the First Amendment by “inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs” in a way that someone might perceive as containing a “latent pro-drug message.”

Justice Stevens said that “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.”

Noting that alcohol also posed a danger to teenagers, Justice Stevens wondered whether “the court would support punishing Frederick for flying a ‘Wine Sips 4 Jesus’ banner,” which he said might be seen as pro-religion as well as pro-alcohol.

The dissenters, who also included Justices David H. Souter, Ruth Bader Ginsburg and Breyer, agreed with the majority that the principal should not be held personally liable for monetary damages. The case was Morse v. Frederick, No. 06-278.

High Court Holds A '60s Revival

Warren era comes to life in cases on student signs and standing to sue

For the ABAJournal.com, David G. Savage writes:

A pair of unusual first amendment cases gives the U.S. Supreme Court under Chief Justice John G. Roberts Jr. a chance to reconsider doctrines that were set in the late 1960s, under Chief Justice Earl Warren.

The court this term will take up a test of the free speech rights of high school students and will decide whether taxpayers have a right to challenge President Bush’s faith-based initiative as a violation of the establishment clause.

The cases recall some that were argued during the Warren era, which famously expanded individual rights. When students showed their disapproval of the Vietnam War by wearing black armbands to high school, the court overturned their suspensions and said students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

And when some taxpayers sued because federal education aid was used to subsidize religious schools, the Warren court made an exception to the rule that taxpayers do not have standing to challenge government policies. In Flast v. Cohen, 392 U.S. 83 (1968), the court said taxpayers may sue to enforce the First Amendment ban on spending tax money to promote religion.

But in more recent times, those doctrines have been narrowed. And in this term, the court will decide whether to narrow them even further.

Perhaps the more colorful case before the court is Morse v. Frederick, No. 06-278. Students outside a Juneau, Alaska, high school unfurled a 14-foot banner along the street after they were dismissed from class to watch the torch for the 2002 Winter Olympics pass by.

As the torch and local TV cameras approached, senior Joseph Frederick and a few friends hoisted the banner, which read, “Bong Hits 4 Jesus.” Principal Deborah Morse spotted it, grabbed it from the students and crumpled it.

When Frederick invoked the group’s right to freedom of speech, the principal said the school’s policy prohibited the display of “offensive” messages, including ones that “promote the use of illegal drugs.” She suspended the senior for 10 days.

Frederick appealed the suspension to the superintendent and the school board, but lost. He then sued in federal court, alleging his free speech rights were violated, but he lost there too.

Last March, however, he won before the San Francisco-based 9th U.S. Circuit Court of Appeals, which held that school officials may not “punish and censor” expressions by students simply because their message conflicts with the school’s policy.

“What schools are entitled to do ... is suppress speech that disrupts the good order necessary to conduct their educational function,” wrote Judge Andrew Kleinfeld, one of the most conservative judges on the 9th Circuit.

He reviewed the trilogy of student free speech cases decided by the Supreme Court. Tinker in 1969 said the free speech rights of students would prevail except when they would cause a “substantial disruption of or material interference with school activities.”

In 1986, however, the court upheld the suspension of a high school student who gave a nominating speech in the auditorium that contained a thinly veiled sexual allusion. School authorities need not tolerate “plainly offensive” speech from students during a “school-sponsored educational program,” the court said. Bethel School District v. Frazer, 478 U.S. 675. Two years later, the court said school officials were free to censor a student newspaper that was produced in a journalism class and therefore was “part of the school curriculum.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260.


NOT ‘PLAINLY OFFENSIVE’

Kleinfeld said the student’s banner was protected free speech. “The phrase ‘Bong Hits 4 Jesus’ may be funny, stupid or insulting, depending on one’s point of view, but it is not ‘plainly offensive’ in the way sexual innuendo is,” he wrote. And since it was displayed outside the school, along the street, it certainly cannot be described as part of the curriculum, he added.

The 9th Circuit not only sided with Frederick on the free speech claim but also rejected the principal’s claim of qualified immunity. “This is no case of ignorance,” the 9th Circuit said. “The law was clear.”

Former U.S. Solicitor General Kenneth Starr, now dean of the Pepperdine University law school, petitioned on behalf of the school board and principal, arguing the law was anything but clear. He noted that school boards across the nation have adopted policies that forbid students from wearing clothes at school events that promote the use of alcohol, tobacco or illegal drugs.

By contrast, the 9th Circuit’s decision says school authorities “must tolerate pro-drug messages in the face of threats of draconian civil damages lawsuits. This is wildly wrong,” Starr said.

The two sides differ on how to regard the torch parade that sparked the incident. Juneau attorney Douglas Mertz, a lawyer for Frederick, calls it an “off campus” event, since the student was standing on the street, not on the school grounds. But Starr referred to the same incident as a “school-sponsored” event, akin to a football game, since school authorities were in control.

In the second case, Hein v. Freedom from Religion Foundation, No. 06-157, the court will focus on standing of a different sort. Arguments are slated for Feb. 28.

In his first term, Roberts made clear he would strictly enforce the limits on standing. Last year, taxpayers in Ohio challenged the state’s subsidies for out-of-state manufacturers to build new plants in the Buckeye State. They won a ruling in the U.S. Court of Appeals saying this subsidy discriminated against interstate commerce and violated the commerce clause.

But Roberts spoke for the court and dismissed the suit. “We have an obligation to assure ourselves of litigants’ standing under Article III,” he wrote in Cuno v. DaimlerChrysler Corp., 126 S. Ct. 2286.

Otherwise, it would “transform federal courts into forums for taxpayers’ generalized grievances.” Ohio taxpayers had not suffered a specific injury that gave them grounds to sue, he said.


FAITH-BASED FUNDING

While rejecting standing for the Ohio taxpayers in DaimlerChrysler, Roberts noted that the Flast decision had created a “narrow exception” for taxpayers who complain about spending to promote religion.

Shortly after taking office, President Bush created a Center for Faith-Based and Community Initiatives in the White House that encouraged religious groups to participate in government-funded social-service programs. Bush’s order stressed tax money would not be used for “inherently religious activities,” such as worship or religious teaching.

Nonetheless, the Madison, Wis.-based Freedom from Religion Foundation sued, contending the White House was using tax money for conferences and meetings that promoted “the funding of faith-based organizations.”

The administration’s lawyers moved to block the suit on standing grounds. They said federal officials were merely assuring that church groups and other religious charities had the same opportunity as others to participate in public programs. Certainly, the president and other officials can speak favorably about religion without violating the establishment clause or giving taxpayers grounds for suing, they said.

A federal judge in Wisconsin dismissed the suit, but the Chicago-based 7th U.S. Circuit Court of Appeals revived it in a 2-1 decision. “Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch,” said Judge Richard Posner.

After the full appeals court upheld that decision in a 7-4 vote, U.S. Solicitor General Paul Clement urged the justices to rule that taxpayers do not have standing to challenge “the executive’s use of general appropriations.”

“This is a relatively narrow question, but it’s quite important,” says Barry W. Lynn, executive director of Americans United for Separation of Church and State. “We believe that no tax money should be spent to advance religion. It’s essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion.”

But Kevin J. Hasson, president of the Becket Fund for Religious Liberty in Washington, D.C., says he hopes the court will use the case to end the “jurisprudence of hurt feelings.”

“Paying taxes should not give every malcontent with a gripe against religion a license to sue the government,” Hasson says. “This case could finally close a loophole in the law through which radical secularists have been driving entire convoys of trucks.”

The "Bong Hits 4 Jesus" Student Speech Case: With Kenneth Starr Seeking High Court Review Of The Ninth Circuit Decision, Is Someone Blowing Smoke?

Findlaw columnist Julie Hilden writes:

Last Monday, September 11, former Independent Counsel Kenneth Starr - now a lawyer at Kirkland & Ellis -- asked the Supreme Court to review a March 10 decision by the U.S. Court of Appeals for the Ninth Circuit, in the case of Frederick v. Morse. The decision upheld a public high school student's First Amendment right to display a banner off campus. Starr represents the school district on a pro bono basis.

In a two-part series of columns, I'll explain why I believe the Ninth Circuit was right to rule as it did. I'll also put the decision in the context of two other controversial decisions the Ninth Circuit has issued this year regarding public school students' speech.

The Facts of the Frederick Case

The Frederick case grew out of an incident in which Juneau, Alaska high school senior Joseph Frederick unfurled a banner reading "Bong Hits 4 Jesus" on a public sidewalk. He did so during a privately-sponsored rally where townspeople watched the Olympic torch pass by. Students were released from school to attend the rally. The high school's "pep band" and cheerleaders performed there, but the court found that teacher supervision of other students at the rally was "minimal or nonexistent."

Frederick and his friends made sure they unfurled their banner when TV cameras were passing by - but the school's Principal, Deborah Morse, who was also attending the rally, went up to Frederick, grabbed the banner, crumpled it up, and suspended him for ten days.

Frederick later sued, invoking the federal civil rights statute that allows plaintiffs to seek money damages for government infringements of their constitutional rights, including First Amendment rights.

In my view, the principal's conduct was appalling. She didn't just tell Frederick to put his sign away, or that it was inappropriate, nor did she warn him that he could be suspended. Rather, she actually went right up to him on a public street and destroyed his banner.

This is the kind of thing that we believe cannot happen in this country. Is it suddenly acceptable simply because the victim is eighteen? What happened to school officials' duty to try to convince students - first, by setting the right example -- to solve their differences with reason, not violence? Ironically, if Frederick had ripped up another student's poster on school grounds, he surely would have been suspended for doing so.

In short, the example this principal is setting is a very ugly one. No wonder the Ninth Circuit held - on the separate question of the principal's claim to immunity under the federal civil rights statute - that "it would be clear to a reasonable [principal] that [her] conduct was unlawful in the situation [she] confronted." (As a result, the principal herself may face liability for damages; she is a co-defendant in the case, along with the school board.)

How could this kind of behavior strike Starr, or Kirkland & Ellis, as so worthy of protecting, that it was worth taking this case on for the school district as a pro bono project?

The Legal Standards for Public School Students' Speech

There are three Supreme Court cases setting forth standards for public school students' speech -- which were considered by the Ninth Circuit - but only one is relevant here.

One of the cases, Hazelwood School Dist. v. Kuhlmeier - addressing school-sponsored speech -- doesn't apply because neither Frederick's banner (nor the rally itself) was school-sponsored in the sense that, for instance, a school-funded student newspaper is.

A second case, Bethel School Dist. No. 3 v. Fraser - which was relied on by the district court, but distinguished by the Ninth Circuit -- doesn't apply because it addresses only vulgar, lewd, obscene, and otherwise "plainly offensive" speech, and because the Ninth Circuit has interpreted that to mean, in essence, obscenity or, at least, speech involving four-letter words or similarly profane language.

Finally, there is Tinker v. Des Moines Independent Community School Dist.. Its rule is simple: Student speech -- other than speech that falls under the precedents noted above - can only be punished or otherwise regulated if it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Moreover, to support the punishment or regulation, school districts must cite "evidence that [the punishment] is necessary to avoid material or substantial interference with schoolwork or discipline."

Applying the Legal Standard in the Frederick Case

The Juneau School District had an exceptionally weak case under Tinker.

In support of its case that Frederick's banner was disruptive, the District claimed that the banner would be read by many at the rally as "advocating or condoning illegal drug use."

Similarly, School Superintendent Peggy Cowan recently told CNN that this case is appropriate for Supreme Court review because it raises "an important question about how the First Amendment applies to pro-drug messages in an educational setting."

But even if this was, to some extent, a pro-drug message, that wasn't all it was. The district itself acknowledged that Frederick could have been not just responding to, but parodying the school's anti-drug message (and parody is strongly protected by the First Amendment). Moreover the "for Jesus" part shouldn't be left out of the analysis; juxtaposing "Bong Hits," the informal "4" for "for," and "Jesus" may also send a message that religion shouldn't be taken so seriously, and a message that Jesus was more laid-back, and would have been more sympathetic to the counterculture, than some authoritarians would admit.

I'm not, of course, claiming that this message was well-thought out. To the contrary, it reads like a spur-of-the-moment lark, a prank. But I do think that it meant something different and more complicated, than just, say, a "Smoke Pot" banner would have. (Frederick himself said the banner was intended to be meaningless and funny, and he just wanted to get it on television. However, as many First Amendment cases have shown, words often have an impact beyond their intended meaning.)

The District also claimed that if the principal had done nothing, the district would have been seen by many as giving its imprimatur to Frederick's pro-drug message. But that claim seems ridiculous: If the District was as avid about spreading its anti-drug message as it claims that it was, no one would believe that it had suddenly changed its policy by merely deciding not to rip up Frederick's poster. If anything, onlookers might believe the District tolerated Frederick's poster out of a healthy respect for the First Amendment, or that the school district simply wasn't worried about its own message being undermined by a poorly-thought-out sophomoric sign.

Why the Ninth Circuit Is Right, and Starr Is Wrong, In This Case

Because this case is such a clear First Amendment violation, and because the Ninth Circuit rightly sided with the student, there's no good reason here for Supreme Court review.

In explaining why review was sought, Eric Hagen, an attorney from Starr's office who also worked on the Supreme Court petition, told a reporter, "It makes it a little harder when teachers and principals in their daily duties might be subject to a damages lawsuit and be held personally liable." But it's only harder for teachers and principals to perform their daily duties when the lines for liability are unclear.

As noted above, there 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. That's censorship with a capital "C." If the Supreme Court does want to make the line between permissible disciplinary action and impermissible First Amendment violation clearer, perhaps it should wait for a subtler, closer case.

Ironically, I think most schoolchildren, if taught a bit about the First Amendment, could easily identify this as an obvious violation. Their teachers and principals ought at least to be able to do the same.