Anatomy Of A Free Speech For Students Case Part II: Frederick v. Morse

We now go to the frozen tundra (no not this frozen tundra, this frozen tundra,) In a scene out of Wayne's World 18 year old Joseph Frederick, clearly a bit of a slacker, was on his way to school one day, but never arrives. (Something about snow in Alaska.) He gets as far as the sidewalk across the street from the school when he joins a group of people including classmates who were dismissed early to watch the Winter Olympic Torch Relay. It is evidentially a big thing because the pep band and the cheerleaders are also out there.

Frederick and his cohorts are waiting for their big chance to get on TV. Their idea? To unfurl a banner that says "Bong Hits 4 Jesus." Why you may be asking? They have no articuable reason other than they thought it might garner sufficient attention to get them on TV. (Things must get really dull in the frozen tundra.)

The High school principal Morse is not amused. She orders them to take down the banner (because it violated the schools rules on offensive material and promotes drug use.) When they fail to obey she grabs it away and crumples it. She further suspends Frederick for five days. He reminds her about Thomas Jefferson and the First Amendment and she suspends him for ten! (And rightly so. The First Amendment was written (principally)by George Mason, Alexander Hamilton, and James Madison. Jefferson was in France acting as our Ambassador there (though he clearly supported the concept.) Maybe she should have been impressed that Frederick wasn't so burnt out that he remembered Jefferson was alive during the period.) Plaintiff also recounts that an assistant principal told him that students do not have first amendment rights. (Another bright light administrator. Geez how are they going to teach kids to respect the law if they aren't even mildly acquainted with the major concepts of it?)

Now there was 2 ways for the Ninth Circuit Court of Appeals to go on this one, both which could have reached the same place. The first was the easy one. This was speech not at school, or at a school activity. It was engaged in by an "adult" (this is an issue of age not maturity)and the school has no business in trying to interfere with the banner.

The Court rejects this. (Why? Because clearly the court wants to discuss students rights and draw a distinction from the Bethel School District No. 403 v. Fraser, 478 US 675 (1986) case.)

Instead it looks beyond the facts and decides that Marijuana use and law in Alaska is a political issue (see footnotes 4 & 5 of the decision). Not that Frederick was making a political or social statement per se but that it could be considered one. As such the Ninth sought to limit Fraser to just sexual innuendo and not to such "inoffensive" material as drug use. It also noted that the activity was not sponsored by the school so it was distinct from the other School speech case (Haxelwood v. Kulhmeier 484 US 260 [1988]) which has modified the seminal Tinker v. Des Moines Independant Community School District case found at 393 US 503 (1969). I do not understand why they just did not see this as a non-school speech case.

Instead the Ninth has split the school speech cases into three types: A) that which seeks to control vulgar, lewd, obscene and offensive speech which is interpreted by Fraser; B)School sponsored speech which is interpreted by Kulhmeier; and C) other speech which is looked at through the Tinker decision.

Under Tinker analysis the action of defendants clearly defy plaintiff's First amendment rights. Moreover, as Morse was aware of the rights and that such awareness could not have allowed her to mistakenly applied the rule, she was not entitled to qualified immunity.

I again do not think this should have been decided as a part of a school speech case. Once it was, I would have decided it against the plaintiff because the speech was neither clearly protected nor was there any chance someone seeing the conduct would have readily understood its meaning. That would have given the principal qualified immunity. Like I said, I would have found for plaintiff under the First amendment protections of off school speech by an adult. I guess I am not going to the Ninth Circuit as a judge any time soon.

If you are interested in more information about School student freedoms, check out The Fire, or contact me at www.colleluorilaw.com