Saturday, July 14, 2007

Revisiting Morse v. Frederick

First, a note to my few regular readers. I apologize for not keeping up with my posting lately. Life and work have gotten in the way of my pontificating. This is not how I wanted things to be, but having a brutal commute and being a new associate don't leave me much time for personal pursuits. Regardless, I will try to keep up with things as much as possible around here. Thanks for continuing to read, and please feel free to jump in if you have a perspective. Now, on with the fun stuff.

I noted in my last post that the Supreme Court recently handed down their decision in the so-called "Bong hits for Jesus" case. The decision is available here (.pdf). I can't say that I am enthusiastic about this result. However, with the recent change in the Court, such a result was predicable. Generally speaking, the Court determined that a high school principal may punish a student for speech that "promotes drug use" within the confines of Tinker, Fraser, and Hazelwood.

Chief Justice Roberts, writing for the majority, relied heavily on facts indicating that this particular event fell within the ambit of Fraser and constituted speech at a school sponsored event. Effectively, Fraser created a time, place, and manner restriction on student speech that is inherently content based. With this application of the Fraser standard, the Court expanded the confines of the definition of "school sponsored" as well as eroding the basic protections for student speech.

The facts of this particular case indicate that the students were released from school to watch the Olympic torch relay as it passed by the school. It is important to note that classes were released for the day. However, the majority is keen to point out that the students were still supervised by the school faculty, including the Principal. This minute factual distinction created enough of a school sponsored atmosphere for the Chief Justice to determine that the school sponsored the event in a manner permitting the Principal to restrict inappropriate student speech. The Court determined that the message, "Bong Hits for Jesus", aimed at promoting illegal drug use and lacked any inherent political value. The dissent suggested that the speech could have had a political message, specifically making a statement about American anti-drug policy. Regardless, the jurisprudential concern raised by this decision is far more pervasive when considered broadly in the context of student speech rights.

Prior to the Court's decision in this case, there were three distinct areas of student speech cases, specifically those mentioned above. Typically, court decisions would fit the facts of cases into one of the three categories: student speech in school generally, student speech at school sponsored events, and school sponsored speech. Morse v. Frederick, though, appears to convolute these three categories, blending the latter two and seemingly ignoring the former. By defining the event at issue in this case as school sponsored, the speech falls squarely into the Fraser or Hazelwood categories. However, Fraser dealt predominantly with lewd or obscene speech, and considered the imprimatur of the audience when assessing the protections provided to students under the First Amendment. Hazelwood dealt with speech that is part of a school sponsored exercise with a pedagogical purpose. Arguably, this decision combines the concepts of Hazelwood and Fraser to expand the ability of school administrators to inhibit speech provided there is a valid legal justification, i.e. protecting children from messages encouraging illicit drug use. The perspective of the Majority relies on the facts of this case to explain why the school may limit student speech while using concepts from both Fraser and Hazelwood, mixing its reasoning while coming to its final decision. This implies that the two decisions are synonymous. Though Hazelwood relies heavily on the rationale for the Fraser decision, the Hazelwood Court pointed out the very limited scope of its decision. Chief Justice Roberts went back and forth between these two decisions, relying on concepts from both. However, I don't think that this will necessarily be the interpretation adopted by future decisions.

In essence, Frederick does more to expand the abilities of school administrators to restrict speech within the confines of the Fraser framework. The Majority decision still relies heavily on an interpretation of facts that places this situation in the confines of speech at a school sponsored event. At most, this decision expands what speech school administrators can restrict during these events. Frederick, then, is an expansion of Fraser, leaving the current tripartite structure intact. Frederick, then, is little more than a logical expansion of Fraser. I think this is a better way to read the Court's decision in order to preserve the existing framework, and essentially avoid the complications created by Chief Justice Roberts in-artful explanation of his reasoning that would impliedly overrule Tinker.

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