On Winning, Losing, and Things Inbetween: A (Preliminary) Comparative Legal Analysis of Morse v. Frederick

by Ronald Krotoszynski

[Ronald Krotoszynski is Visiting John S. Stone Chair of Law, University of Alabama School of Law & Professor of Law, Washington and Lee University School of Law. His recent scholarship includes The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (NYU Press 2006)]

In the United States, we have a decided tendency to prefer clear winners and losers–as opposed to vexatious ties. Yet, not all contests end with a clear winner or a clear loser. Some end in draws. And, in the law, some “draws” have quite significant implications that go well beyond the naked result. So it is with Morse.

The mass media generally reported Morse as a loss for advocates of student speech rights. The reality is a great deal more complicated. To be sure, Chief Justice Roberts wrote a majority opinion that found, on the facts presented, against the student (Joseph Frederick) and in favor of the high school principal (Deborah Morse). In order to reach this conclusion, Chief Justice Roberts first found that the speech at issue took place on school grounds, slip. op. at 5-6, and that the speech, a sign proclaiming “BONG HiTS 4 JESUS” could be reasonably understood to have “advocated the use of illegal drugs,” slip op. at 7. With the facts thusly stated, the “question thus becomes whether a principal may, consistent with the First Amendment, restrict school speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Slip op. at 8. And, as the media reported, Chief Justice Roberts concluded that given the social problems associated with illegal use of illicit drugs, such as marijuana, by minors in the contemporary United States, a high school principal could censor speech that advocates the use of such substances at an official school event. Slip op. at 12-15.

Indeed, when so framed, the case is not particularly interesting. Chief Justice Roberts openly acknowledges that “[s]tripped of rhetorical flourishes, then, the debate between the dissent and this opinion is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use.” Slip op. at 15. Would anyone seriously suggest that a student could unfurl a banner proclaiming “Just Do It!,” borrowing an old Nike advertising slogan as a double entendre, at a school-sponsored gymnasium rally for an official school sanctioned “abstinence until marriage” program? Thus, the key to Morse was in the two crucial baseline characterizations: 1) deciding that the banner, which was unfurled off campus property (across the street) but during regular school hours, constituted “school speech” as opposed to speech in a public forum, and 2) interpreting the speech to seriously advocate the use an illicit drug (marijuana). These were as much cultural as legal questions, and one might well predict that, in another culture, these questions could have different answers.

As a thought experiment, one of the permanent contributors asked me to consider whether Morse would likely have been decided in the same way in other nations sharing a strong commitment to protecting the freedom of speech. It’s an excellent question and one that merits serious consideration because it helps to demonstrate the importance of culture to law, even when two nations share a common legal (or constitutional) commitment.

For example, it seems highly likely that the case would come out much the same in Japan, notwithstanding the significant cultural differences that exist between the United States and Japan. That is not to say that culture is irrelevant. As a preliminary matter, the course of events giving rise to Morse would be very unlikely to arise in Japan at all because the social pressure against disrupting a major community event, bringing down embarrassment and shame for the entire community, would mean that no kid would even THINK about unfurling such a banner as the Olympic torch passed through town (perhaps prior to the Nagano Winter Olympics, rather than the Salt Lake City games). In all probability, the only way similar events would occur would be if the banner were part of some organized protest by a subgroup. Suppose that some farmers were displaced to build a new Olympic venue in Nagano—it is entirely possible that farmers from that community, as a group, would protest with a sign in public. But then you’ve changed the material facts! A second reality in Japan would be a lengthy delay between the discipline and the ability of the plaintiff to obtain a trial and intermediate appeal; Frederick would likely have finished college by the time the case reached the Supreme Court of Japan. But, leaving aside objections about the probability of similar behavior occurring or the timing of the decision, would the outcome look any different in Japan? Probably not, and here’s why.


4 Responses

  1. The U.S. Supreme Court’s opinion really came down to whether the Justices were willing to accept Principal Morse’s interpretation of the banner as “reasonable.” Otherwise, both the majority and dissenting opinions showed unanimity in determining that the Juneau School District’s rule against promoting illegal substances was a permissible rule. Perhaps in Canada, the school’s rule would not have survived a facial challenge. It clearly would have here, probably 9-0.

    Interestingly, the Ninth Circuit assumed that Principal Morse’s interpretation was correct, accepting that Frederick’s banner “expressed a positive sentiment about marijuana.” [This is reminiscent of Justice Brennan’s concurrence in Bethel School District No. 403 v. Fraser (upholding a school’s punishment of a student for giving a lewd speech at a voluntary student assembly) — Justice Brennan observed that he didn’t personally view the student’s speech as offensive, but he deferred to the school administrators’ exercise of discretion as “not unreasonable.”]

    I think Justice Stevens’ dissenting opinion is untenable for at least two reasons. First, if the dissenting opinion had carried the day, it would have allowed judicial second-guessing of almost any school administrator’s decision. I often tend to be critical of the priorities and decisions of many public school administrators, but I don’t think encouraging litigation against them helps the situation. As a parent, I prefer to deal with this by participating in local school activities and voting in school board elections. Given that the banner was plausibly a promotion of marijuana (i.e., the principal’s interpretation wasn’t merely a sham to punish the student for some other unrelated reason), the lower courts and the Supreme Court majority were all correct to defer to Principal Morse’s interpretation as reasonable.

    Second, the dissenting opinion’s determination that the drug-promotion interpretation was unreasonable was based on accepting Frederick’s assertion that his banner was nonsensical and meaningless. If the dissenters determined the banner was meaningless, it’s difficult for me to see how it can rise to the level of First Amendment-protected speech that justifies a lawsuit going forward against public school administrators.

    In the end, I believe this case was less about whether the phrase “BONG HiTS 4 JESUS” is a dangerous phrase in schools and more about whether schools should be a free-for-all when it comes to students expressing positive sentiments about the use of illegal drugs, alcohol, and tobacco. If a substantial number of students are wearing Budweiser t-shirts to school, it won’t be long before peer pressure sets in and others will start experimenting early with illegal substances. Also, I believe the case had a lot to do with how much federal judicial oversight do we want when it comes to day-to-day public school administration. I would think that most other cultures are puzzled by the the litigiousness of American society. And where litigation-averse attitudes prevail, I would think that Frederick’s lawsuit would likely fail.

  2. Scotusblogger,

    I disagree with your last paragraph. I find the rest of your argument reasonable, even if I wouldn’t subscribe to it, but I don’t think you give students enough credit. If every kid in my high school had worn budweiser t-shirts I certainly wasn’t more likely to have a beer. That isn’t the kind of peer pressure most kids get nailed by. In the end most kids don’t like to conform. It isn’t about doing illegal things because your friends do them, it is about being able to mark yourself in some was as different, not like everybody else.

    Secondly, how can you say that this case has a lot to do with federal judicial oversight in public schools given the decision in Seattle School District? We don’t want the federal government intruding on student speech when administrators say its a bad thing, but we do when we are talking about a school board’s decision to use race to increase diversity? I would think the first amendment is just as important as the fourteenth.

  3. I expected my posts on this one. I was under the impression that the student was a couple of yards outside of the school zone. I did side with the school when then happened because of the problem of illegal drugs in this society.

    I hope it serves as a lesson for other students across the country on the responsibility the comes with free speech.

    There was word that this kid was a part of a get high after group, I do not know the facts on the.

    If the sign said “Get High on Jesus” then the illicit drug message would be a matter of interpretation. “Get High on Jesus, 4:20” would be a more direct allusion to doing drugs(theres a wiki on 4:20 to look it up its history if you care to, I did).

    I was wondering since the event is international yet hosted on domestic land what king of IL could come into play as far as free speech is concerned.

    Interesting case. Maybe some young guns got an IL or law spark out of it over getting a drug spark.

  4. China will host the next Olympics. I hope protesters understand which law has precedence. China Today, a free English text online daily, did mention that the Chinese government were mauling over what would be permissible for the international event when protesters, of the West, showed up.

    ** my last post’s opening sentence was to read: I expected many posts on this one.

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