On Winning, Losing, and Things Inbetween: A (Preliminary) Comparative Legal Analysis of Morse v. Frederick
[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.
Japan is not particularly known for maintaining a forgiving attitude regarding the possession or use of illegal drugs. In cultural terms, advocating drug use in a public school would be no less implausible in Japan than Chief Justice Roberts found it to be in the United States. See Slip op. at 13 (noting that “[s]tudent speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse”); id. at 4 (Alito, J. concurring) (comparing speech advocating drug use to speech advocating violence because “[s]peech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious”); but cf. id. at 11 (Stevens, J. dissenting) (rejecting the notion that Frederick’s “nonsense message,” properly construed, “objectively amounts to the advocacy of illegal drug use” and emphasizing that “[t]his is a nonsense message, not advocacy”). Accordingly, the Justices of the Supreme Court of Japan would, like their counterparts on the Supreme Court of the United States, probably see the phrase “BONG HiTS 4 JESUS” as advocacy of illegal drug use. Advocacy of illegal drug use at an official school event, in contradiction of official school policies, is not likely to get very far under Article 21, the Japanese Constitution’s analogue to the Free Speech Clause of the First Amendment.
Thus, the court’s characterization of the speech as advocacy of illegal drug use in a public high school, rather than nonsense, would probably be the end of the free speech claim in Japan, just as it was in the U.S. The legal question turns on the cultural salience of the war on drugs and one’s tolerance for speech that might be seen as undermining that effort. For some Americans, including incumbent members of the Supreme Court, the war on drugs is a serious matter indeed. And, any language that seems to undercut the war on drugs, particularly in a public school, is simply too dangerous to be tolerated.
Another point of comparison to the modus operandi of the Supreme Court of Japan bears noting: even though if (counterfactually) the protest took place in Nagano rather than Juneau, the Supreme Court of Japan would, like the Supreme Court, also use the case to expound on the importance of Article 21 free speech rights under the Japanese Constitution. Even as it sustained punishment for the specific sign at issue, I am reasonably certain that it also would emphasize that the particular message represented a special kind of threat to a core mission of the school, and that school administrators could not censor less toxic speech so freely.
Once again, the point of comparison is not a point of departure. Justice Alito’s concurring opinion reads very much like some of the Supreme Court of Japan’s free speech decisions, in that even as it declares a loss for a civil rights or civil liberties litigant, it announces a rule that seems to vindicate some of the core animating concerns that gave rise to the claim. Thus, one could easily imagine the Supreme Court of Japan holding, in a case with similar facts, that “the public schools may ban speech advocating illegal drug use,” while nevertheless “regard[ing] such regulation as standing at the far reaches of what [Article 21] permits.” Slip op. at 4 (Alito, J., concurring). Thus, the holding would “not necessarily justify any other speech restrictions” aimed at “suppress[ing] speech on political and social issues based on disagreement with the viewpoint expressed.” Id. at 2-3.
Once, while speaking with a legal scholar working on a project advocating judicial minimalism, I suggested that the person consider looking to the Supreme Court of Japan as an example of a “minimalist” bench. The person responded with a laugh and emphasized that “minimalism” did not mean “abdication”—how could the Supreme Court of Japan be of any interest when it has only invalidated national laws about a half dozen times over six decades? The answer has much to do with judicial decisions that, although superficially losses for rights claimants, nevertheless represent meaningful efforts to expound upon and enforce constitutional rights. In other words, in thinking about judicial review in Japan, one cannot just look at instances of judicial invalidation of statutes; instead, one needs to look at what the Justices do along the way. Indeed, even when a statute “survives” judicial review, it often bears little resemblance to the original statute under judicial scrutiny. Morse provides an example of how judges can (and do) enforce constitutional rights even as they reject the specific claim at bar; Justice Alito’s opinion clearly ratifies Tinker and, outside a few hot button social issues, like sex and drugs, where a school may attempt to enforce intellectual orthodoxy among its students, Tinker provides a better measure of student speech rights than the majority opinion in Morse. This practice is more commonplace in free speech decisions of the Supreme Court of Japan, but the failure of the Japanese Justices to “strike resounding blows” does not mean that they have failed to enforce or protect free speech principles (any more than one could reasonably read Morse as a green light for efforts to enforce political orthodoxy on U.S. high school students).
In sum, if the behavior at issue in Morse did happen (counterfactually) in Japan, the Supreme Court of Japan would, like the U.S. Supreme Court, very likely hold that students have significant free speech rights under Article 21, but also hold, alas, that the high school principal did not violate those rights on the facts presented. In other words, the Justices would vindicate the notion of free speech, but would likely defer to the local school authority’s decision to suppress this particular speech on these facts.
Other nations with constitutional free speech guarantees, for example, Germany, would be harder to call. On the one hand, a German reviewing court might see the protest as a form of artistic expression, thereby triggering protection under Article 5 of the Basic Law (Germany’s constitution). On the other hand, Article 5 specifically exempts “laws for the protection of youth” from its coverage; if the school regulation qualifies as a “law for the protection of youth,” then the claim would likely fail. I don’t know the case law regarding this exemption well enough to venture a guess as to whether it would apply on the facts of Morse. Moreover, the characterization of the speech as “nonsense” versus advocacy of illegal drug use at an official school event also would prefigure the outcome significantly. I’m skeptical that the German Federal Constitutional Court would sustain a free speech claim on those facts (i.e., advocacy of illegal conduct by a student during a school program). At the same time, I’m not at all sure that Germans would view the speech as serious versus nonsense. If seen as nonsense, the chances of finding it protected under Article 5 of the Basic Law seem reasonably good. One would have to have a better sense of German attitudes toward marijuana and illicit drugs than I do to venture an educated guess.
The place where I would most want to litigate the claim: Canada. Even threats, perhaps acts, of violence, if intended to communicate a message, count as protected “expression” for Section 2(b) of the Canadian Charter of Rights and Freedoms. Thus, there’s no problem with triggering Charter free speech rights at step one. At step two, one would have to balance the school policy against the speech right to determine if the response was proportionate and justified by sufficiently important countervailing social values. It’s hard to imagine the Supreme Court of Canada, which has found significant free speech value in child pornography (Sharpe), would fail to protect a nonsense sign waived by a student. And, there’s a cultural element to the analysis too—if we simply move the case from Alaska to neighboring British Columbia, the prevailing social attitude towards marijuana, and the legal system’s commitment to enforcing criminal proscriptions against it, weakens considerably (although Alaska’s local history on this point is somewhat idiosyncratic when viewed against the U.S. as a whole).
In any event, in B.C., the probability of “BONG HiTS 4 Jesus” being viewed as seriously socially harmful advocacy of drug use would be quite low; in cultural terms, the sign would more likely be seen as silly nonsense. In fact, to borrow a bit from the earlier Japan example, I’m doubtful that a school principal in British Columbia, at least in metropolitan Vancouver, would tear up the sign in the first place. Were it to end up in the provincial courts, it’s likely that the student would prevail. In part, this is a function of the scope of free speech protections in Canada—at least to U.S. eyes, they are remarkably broad.
Yet, even here, important differences, rooted in culture, persist. The Supreme Court of Canada will sustain laws and policies that trench on speech rights to advance important Canadian social objectives, like social and political equality among a diverse people and promoting Canada’s commitment to multiculturalism (a value enshrined in Article 27 of the Charter, which provides that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”). I don’t think suppressing “BONG HiTS 4 Jesus” would be a sufficiently important social objective, in cultural context, to sustain a policy banning the student’s speech. On the other hand, if the banner in Canada said “Death to Israel and All Jews!,” the principal would not only win, but the kid would run a real risk of criminal prosecution for incitement to racial hatred (particularly if the incident made the national media wire). In Canada, the presumption in favor of free speech usually carries the day, unless the commitment to multiculturalism and equality provides the counterweight. Those factors being absent in “BONG HiTS 4 Jesus,” marijuana being less of a social issue, and the notion of expression being remarkably expansive, I think Joseph Frederick wins. If only he had been in British Columbia rather than Alaska!
To run the counterexample, I seriously doubt that Morse would have come out the same way in the United States if Frederick raised a sign reading “Death to Israel and All Jews!.” In theory, the analysis should be the same—surely the school system has as strong an interest in discouraging hate crimes and bigotry as it does in suppressing advocacy of the use of illegal drugs. Yet, given R.A.V. and the Supreme Court’s consistent concern with viewpoint discrimination, one wonders if efforts to enforce political orthodoxy (outside the areas of drug use and sex) would lead to the same result. Or, to make the case harder (easier?), suppose the sign said, “End Affirmative Action Now!” and the school maintained a policy of using affirmative action policies? Could the principal also tear up that sign? Presumably the answer should be “yes,” if the school district maintains a strict policy in favor of constitutionally permissible affirmative action programs. Moreover, these are precisely the sorts of facts that Justice Alito appears to have in mind in his concurring opinion that seems to say that the Morse holding, if not limited strictly to advocacy of illegal drugs at an official school event, is probably limited to advocacy of illegal drug use and premarital teen sex at an official school event.
Frederick Schauer has recently emphasized that cultural norms play an important role in shaping the scope and content of “the freedom of speech.” Schauer argues, persuasively in my view, that a preliminary, and often unstated, analysis occurs before the Free Speech Clause gets brought to bear in a particular context. Morse nicely bears out this observation, for the decision seems to me to be much more about the culture wars over drugs, sex, and rock and roll than a fundamental rethinking of whether Tinker makes sense in the contemporary public schools. Moreover, the decision also helps to highlight how cultural sameness and cultural difference might affect how another nation’s courts would respond to a similar problem. And, there’s an important lesson in all of this.
If culture affects the way people of good will perceive background facts, borrowing legal rules that reflect radically different cultural understandings might not be prudent. For example, even though Morse might well come out differently in Canada, this would not mean that Canada’s protection of political speech is broader than the comparable protection afforded in the United States. Different, yes, but one cannot answer the question of broader/narrower, or stronger/weaker, without a great deal more information. Indeed, I’m not even sure that attempts to characterize another nation’s legal system, using the prevailing U.S. norm as a yardstick, serve much useful purpose, precisely because such efforts presume a cultural frame of reference that simply does not apply in the nation being compared to the U.S. The exercise of thinking about how other nations would address a common legal problem nevertheless has utility, insofar as it helps to bring the legal, social, and cultural underpinnings of U.S. law into clearer light.