Tuesday, June 26, 2007

School speech: Morse v. Frederick "Bong Hits 4 Jesus" Supreme Court opinion has some subtle hints

The case Morse v. Frederick, decided Monday June 25 by the United States Supreme Court in favor of the Juneau, Alaska school district, ruling that it had not violated the valid First Amendment rights of student Joseph Frederick when he displayed a banner that read “Bong Hits 4 Jesus” on a public street in front of the Olympic Team on the way to Salt Lake City for the 2002 Winter Olympics.

There is some irony in that now Mr. Frederick, now 24 and a young adult, himself teaches English as a second language in China. From all appearances, it sounds like he could teach high school English in the U.S. and, with or perhaps in spite of his politically libertarian ideas and expression of them, he might be very effective with many students in teaching the accepted curricula of composition, grammar, and generally recognized literature. At least, he would be in a position to know both sides of this argument.

The Court majority noted that, although the banner was displayed on a public street, it occurred in a school sanctioned event and was in close proximity to school and would be perceived by others as connected to school. But there are even more critical lessons from the opinion.

One is first recognition of the tenuous position of many high school administrators, who must protect students from threats to security and particularly from enticement to disobey the law. The next is to consider the responsibility of a speaker in assessing how an ambiguous bit of speech is likely to be interpreted by others, in this case other high school students who are not fully mature cognitively. The Court felt that the message could most reasonably be interpreted as enticement to use marijuana, a controlled substance. If so, administrators could reasonably perceive it as a safety threat and not legitimate speech. Mr. Frederick claimed that the sign was essentially a joke and meaningless gibberish. He seemed to admit that he liked the idea of showing up in the limelight on television. However, in assessing the possibility of disciplinary action, he needed to consider the possibility and practical likelihood that many people would interpret the sign as enticing.

A good question, raised in several places in both the majority and various supplements and dissents, is whether the sign constituted a valid argument for repeal of drug laws. The majority felt that it does not, but it seems to me reasonable that it does. People often use irony in expressing political ideas, especially in drama, film, and political or advocacy commercials. That seems reasonable here. There was also some discussion over whether the school is entitled to have its anti-drug educational message defended from challenge, but some court members, while defending Morse, maintained that it does not (which is what the Bush administration wanted). So the significance of the opinion as a legal precedent in other first amendment cases may be limited. Imagine, for example, how a broader ruling could affect gay groups in public schools if school boards were determined to push “abstinence only” messages. It’s ironic that some religious conservatives had sided with Frederick because they want the right to push anti-gay messages in public schools, and that idea probably was not what Mr. Frederick intended when he displayed the sign. So, ultimately, the Court is warning speakers, be careful of how others will perceive your speech and your motives, given the context of the display and even your circumstances, here as a student.

The Court did note that “offensiveness” of speech alone might not have justified administrative action against Frederick. Sometimes, the Court noted, genuine political speech will offend some people, especially when irony is involved. That comment would need to be considered in the context of the public outcry against Don Imus and other media hosts.

This ruling concerned a high school student and administrative, non-judicial discipline taken against him. It did not involve criminal prosecution (as for enticement). However, the case might have implications in other situations involving speech by teachers (including substitute teachers) as well as students. The Court discussed a lot of the previous audit trail of case law (Tinker, Hazlewood) etc., and it does seem that most of the cases have to do with speech that occurs at school, perhaps in school newspapers or yearbooks, and in close proximity to school property at sanctioned events. Nevertheless, the Internet and search engines, as we know from COPA, add a new dimension to this problem that has only been apparent for the past few years. A school district may set up an age appropriate and approved curriculum, only to have it undermined by comments that a teacher makes from home on the web, easily found by students from search engines. There is a risk that students may find some materials authored by a teacher that they know as enticing. The Court was careful to word the opinion so as not to box itself in for future cases of broader implications (as for teachers) that it knows are coming down the pike.

Text of opinion (PDF) at Supreme Court website, here.

1 comment:

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