Supreme Court's Free SpeechDecisionis a Setback, Not Loss, Experts Say
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Joan Oleck -- School Library Journal, 07/11/2007
The U.S. Supreme Court’s recent decision that Alaska school officials did not violate a student’s free speech by suspending him for a controversial banner is a setback but not a serious loss for student rights, say First Amendment experts from the legal and librarian communities.
Morse v. Frederick involves Joseph Frederick, who was a senior at Juneau-Douglas High School in 2002 when he held up a sign reading "BONG HiTS 4 JESUS" during an Olympic Torch Relay. Even though the event took place off school grounds, Principal Deborah Morse interpreted the sign as a pro-drug message and sought to suspend the student for 10 days. The Supreme Court also viewed the sign as promoting drug use, but the American Civil Liberties Union (ACLU), which sponsored Frederick's defense, countered that “Bong Hits 4 Jesus” was merely a nonsense phrase.
Frederick has denied his principal’s charge, saying in a statement released by the Alaska ACLU that his sign was not intended as a drug or religious message. “I conveyed this to the principal by explaining it was intended to be funny, subjectively interpreted by the reader and most importantly an exercise of my inalienable right to free speech.”
The case also was an expression of the long-standing hostility that Frederick felt toward the administration, says Michael Mcleod-Ball, executive director of the Alaska ACLU. The student, who had completed most of his credits and was attending school part-time, had been told he couldn't wait for his girlfriend in the school's entry way, the ACLU official says. “The way I look at it,” says Mcleod-Ball, “Joe’s attempts to essentially make a public statement were political speech because he was having a conflict with the administration. So the Court, I think, by saying this was ‘drug-related,’ completely misconstrued it.”
The important point about the Frederick decision, says Mcleod-Ball, is that it is limited to the facts of the case: the Court saw the banner as an endorsement of drug use. Had the banner been a protest against the school administration, the Court might have decided differently.
Judith Krug, executive director of the American Library Association’s Office of Intellectual Freedom, agrees that the fallout is minimal. “The bad news in my opinion is that student rights have been set back,” she says. “The good news is that the decision is very fact-specific. It focuses on the banner and the meaning of the banner, which I think the Court imbued with something that was not there. But it means that we may be able to fight again.”
Unlike the 1969 student free speech case Tinker v. Des Moines Independent School District, the Frederick case did not seem to involve a question of school disruption, probably because the banner was displayed off school property. In Tinker the Supreme Court upheld the right of students to wear black armbands protesting the Vietnam War, saying there was no disruption to studies.
Instead, Frederick revolved around the drug question. The Court held that “because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging drug use, school officials did not violate the First Amendment.”
