Author Archive for
Ronald Krotoszynski

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.