Morse v. Frederick: Promotion of Illegal Drug Use at School-Supervised Event (05/25/2007)

Morse v. Frederick

Does the First Amendment allow public schools to forbid students from displaying messages encouraging the use of illegal drugs at school-supervised events?

Argued: 03/19/2007

Decision Date: 05/25/2007

Decision Record: 5-4; yes

Justices in Favor: John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito

Justices Dissenting: John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Effect of the Decision

This case ruled that schools have the right to prohibit messages, etc. that promote things like illegal drug use at school-supervised events.

In Favor

In the favoring side of this case, on the side of Morse, attorney Kenneth W. Starr argued, “Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation.

Congress has so recognized, as has this Court, time and again.

The magnitude of the problem is captured in the amicus brief, the Court has a number of amicus briefs before it, but the amicus brief of General McCaffrey, Secretary Bennett, and a number of organizations.

And particularly, pages 5 to 9 of that brief, the nature and the scope of the problem are well-captured.

Well, there are several gradations that the Court could take: Advocacy of illegal conduct generally; more specifically advocacy of illegal drugs.

But I believe… I think it’s important to recognize that this Court’s precedents recognize… recognize several different justifications for restricting student speech.

In Tinker itself which dealt with political speech, the Court was careful to point out that even then, if the speech could be shown to present a threat of a material disruption to the class work, and I think this would answer your question, Mr. Chief Justice, if the teacher wants to teach Shakespeare, the teacher doesn’t have to turn over the class to political speech.”

Against

In the opposition, on the side of Frederick, attorney Edwin S. Kneedler argued, “The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the use of illegal drugs.

As this Court observed in Earls, the nationwide drug… drug epidemic makes the war against drugs a pressing concern in every school.”

Justices:

On the side of the majority, Justice John Roberts wrote the opinion for the court. He wrote, “School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—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. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

    The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”

Then in dissent, Justice John Paul Stevens wrote, “Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message. Our First Amendment jurisprudence has identified some categories of expression that are less deserving of protection than others—fighting words, obscenity, and commercial speech, to name a few. Rather than reviewing our opinions discussing such categories, I mention two personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use.

    The Vietnam War is remembered today as an unpopular war. During its early stages, however, “the dominant opinion” that Justice Harlan mentioned in his Tinkerdissent regarded opposition to the war as unpatriotic, if not treason. 393 U. S., at 526. That dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, see United States v. Dellinger, 472 F. 2d 340 (CA7 1972),and the vilification of vocal opponents of the war like Julian Bond, cf. Bond v. Floyd385 U. S. 116 (1966) . In 1965, when the Des Moines students wore their armbands, the school district’s fear that they might “start an argument or cause a disturbance” was well founded. Tinker, 393 U. S., at 508. Given that context, there is special force to the Court’s insistence that “our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Id., at 508–509 (citation omitted). As we now know, the then-dominant opinion about the Vietnam War was not etched in stone.

    Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

    Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. Whitney, 274 U. S., at 377 (Brandeis, J., concurring); Abrams, 250 U. S., at 630 (Holmes, J., dissenting); Tinker, 393 U. S., at 512. In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment . Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.”

My Opinion:

In this case, I agree with the majority decision. The school has complete authority to regulate things like this. It’s their job. The First Amendment, like I’ve stated in a previous case, had the purpose of allowing people to freely express themselves, whether it’s through words or religion. In this case, Frederick merely did it for the fun of it. There was no real meaning behind it except for the fact that it was extremely inappropriate; especially at a school-supervised event. It is a school administrator’s job make sure everything that everyone’s doing is school-appropriate and won’t affect others in a negative manner. Holding up a banner that promoted illegal drug use did none of that.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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