In 2002, Joseph Frederick went to an Olympic Torch Relay, a school-sponsored event, and caused quite the controversy. Frederick, a senior at Juneau-Douglas High School in Alaska, held up a banner with a message in reference to drug use to garner attention from the media present for the relay. The school’s principal, Deborah Morse, asked Joseph to put his banner away, and when he refused, Morse took the banner from him. The principal argued the banner violated school policy, which does not allow the promotion of illegal drugs, and suspended Frederick from school for ten days. Frederick argued that his words were just in jest. He sued the school, claiming that his First Amendment right to freedom of speech was in jeopardy. Frederick enlisted the help of the American Civil Liberties Union (ACLU) of Alaska. Ken Starr, known for his controversial investigation into President Bill Clinton, represented Morse pro bono, or free of charge. The Court was asked to answer if the First Amendment allows schools to discipline students if they choose to promote illegal drugs at a school event.
In a 5-4 decision, the Court ruled in favor of Principal Morse and the school district, allowing the school to prohibit messages promoting drug use at school-sponsored events. Chief Justice John Roberts wrote that while students hold rights to political speech, established in Tinker v Des Moines (1969), this right did not extend to promoting illegal drugs. The Court deviated further from Tinker by distinguishing between the rights of adults and the rights of children. However, the Court cited Tinker, which established that political speech could be limited if it substantially disrupted education, and claimed that Frederick’s sign did just that. While Frederick’s sign was somewhat ambiguous, the Court concluded that it was meant to promote the use of drugs, which could reasonably be assumed to disrupt education. The Court did not see his speech as political as the case in Tinker. The Court also cited Bethel School District v Fraser (1986), which established that the First Amendment did not protect obscenity in school. Roberts’ opinion also relied on Hazelwood v Kuhlmeier (1988) in which the Court decided the speech of school-sponsored newspapers could be restricted.
The majority decided that the state interest in restricting speech around illegal drug use was legitimate. Justice Roberts argued that it was a part of an educator’s duty to deter illegal drug use. Though Frederick did not act inside the school gates, his actions at a school-supervised event allowed the school to enforce disciplinary action on his conduct. The concurrence of Justice Alito, which was joined by Justice Kennedy, limited the Court’s ruling. Alito wrote that the decision was only in reference to pro-drug messages and not all political speech. Justice Alito was also sure to mention that if Frederick’s sign was more political, he could not be disciplined the same. His concurrence also mentioned that the Court does not agree with Ken Starr’s argument that the First Amendment can be restricted by schools to include anything not in line with the school’s educational mission. He found that argument a step too far. However, Justice Thomas wrote a concurrence, which went even further, to argue that free speech rights did not apply at all to students, and urged Tinker to be overturned. As a result of the decision, advocating the use of illegal drugs at a school event is not protected by free speech.
Justice Breyer concurred in part and dissented in part. He argued that the Court should have solely ruled on Frederick seeking damages, which Breyer believed was unwarranted. However, Breyer thought the Court took it a step too far in deciding to engage in a First Amendment debate. Justice Stevens wrote a dissent for Justices Ginsburg and Souter. Stevens argued that the First Amendment is more important than the arguments made by the school district. He also stated that Frederick’s sign was an indirect reference to drug use. Stevens’ dissent relied on Tinker, stating that if the Court had followed precedent more strictly, Frederick’s suspension would not have been upheld.
Some were concerned that all First Amendment rights in schools would be in jeopardy following the decision in Morse. However, most have found that the ruling does not completely deplete student-speech rights, partially due to the nature of Justice Alito’s concurrence. The decision has been frequently criticized, however, especially by media outlets like the New York Times and others. The media’s concern is that this ruling has led to students self-censoring in their schools’ newspapers, leading to less in-depth and provocative reporting, which is essential in American society.