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The Limits of Morse v. Frederick:

I've often heard people defending various K-12 speech restrictions by citing Morse v. Frederick (the BONG HiTS 4 JESUS case). Many of these people think Morse is wrong, but argue that it's binding precedent.

But as to many of these arguments (see some in this thread), Morse is often not very relevant, much less binding. One premise of the Morse majority is that the speech wasn't "political":

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster "national debate about a serious issue," as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent's suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.

Two of the five Justices in the majority (Justices Alito and Kennedy) stressed this in the very first paragraph of their opinion:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no sup-port for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use."

What's more, three of the four dissenters agreed: "This is a nonsense message, not advocacy."

Now, as I argued when the decision came down, I think the Justices were wrong to say that Frederick's message was nonsense, or even just nonpolitical. The majority said "BONG HiTS 4 JESUS" "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug,'" or "as celebrating drug use -- 'bong hits [are a good thing],'" two messages that the majority saw as constitutionally indistinguishable. But these messages indeed "can plausibly be interpreted as commenting on any political or social issue": They implicitly suggest that drug laws are a bad idea ("violate law X" often tends to suggest that, especially as to laws that are quite controversial), which is a comment on a political issue. And they suggest that drug use is a good idea, which is a comment on a social issue.

Yet while the Court applied its own test incorrectly to these facts, it hardly follows that it should apply its own test incorrectly to other facts as well, especially ones that are quite far removed from these. Perhaps Morse supports the view that highly opaque statements might be seen as nonpolitical. Perhaps it supports the view that mere advocacy of illegal conduct is nonpolitical, though I think that is inconsistent enough with the rest of the Court's precedents that I don't think it's right to read Morse even that broadly.

But surely the T-shirt below (to give the example that triggered this post) clearly "can plausibly be interpreted as commenting on any political or social issue":

It is saying that abortion is immoral, so people shouldn't engage in it. And it is probably also saying that it is so immoral that abortion should be legally restricted. (That abortion is currently constitutionally protected doesn't matter: That just means that legally restricting it would require either electing Presidents who appoint enough Justices who would hold that abortion is constitutionally unprotected, or enacting a constitutional amendment to the same effect -- politically quite difficult, especially at this point, but certainly calls for this are political speech. Plus of course even if abortion can't be entirely banned, it can be restricted in various ways, which the T-shirt likely implicitly calls for as well.)

Now indeed if the T-shirt said something like "Kill abortionists," then perhaps the Morse analogy would govern. I would still say that such a statement is political speech and thus Morse shouldn't apply, but I can see the argument that statements in Morse distinguish, in the K-12 public school context, between advocacy of illegal conduct and advocacy of changing the law (or changing social attitudes). But nothing in Morse would extend to the T-shirt mentioned above.

I can understand why many people are upset at Morse. I can also understand why many people like Morse and wish it had gone further, perhaps (as Justice Thomas suggested) to give K-12 school administrators blanket authority to restrict student speech. But if we're looking at what the language of Morse actually means, it seems to me that we need to acknowledge that it's distinctly limited in its scope.

Related Posts (on one page):

  1. The Limits of Morse v. Frederick:
  2. Junior High School Student Ordered Not To Wear Pro-Life T-Shirt:
troll_dc2 (mail):
Suppose I am a junior high school student, and I wear to class a shirt that says "Abortion is a good thing." This is clearly a comment on an important issue of public concern. It is likely also to cause a lot of disruption. Should I be allowed to wear the shirt?
6.30.2009 6:32pm
Oren:

Yet while the Court applied its own test incorrectly to these facts, it hardly follows that it should apply its own test incorrectly to other facts as well, especially ones that are quite far removed from these.

I see your logic, but on the other hand, uniformity of justice is often as important as getting the facts right. I'd rather the courts unfairly squelch all the student's speech than play the political favorites game in the school district elections.

It's more intolerable for me to have an inconsistent rule than an out-and-out wrong one.
6.30.2009 7:07pm
tvk:
I don't really disagree to much with what you say, but Morse, like any other decision, can be characterized broadly or narrowly. You adopt a fairly narrow interpretation or Morse. Others may adopt a sweeping one. I don't think the narrow interpretation is the only plausible reading of the Morse opinion. And when both the narrow and the broad reading are plausible, it is understandable that the side you choose depends on the side you think is normatively desirable.
6.30.2009 7:07pm
Eugene Volokh (www):
troll_dc2: Tinker allows restriction of speech when there's sufficient evidence that it's likely to be materially disruptive. The question is when Morse kicks in and allows restriction even when there is no evidence of likely disruption.

Oren: If you think that therefore Thomas's approach is right, say so. But that approach got only one vote in Morse. Morse itself doesn't support restricting political speech. That the Court got it wrong in failing to recognize the political message of "BONG HiTS 4 JESUS" doesn't mean that somehow Morse mandates that courts pretend that all other political speech is nonpolitical.

Tvk: The Morse majority expressly stresses that it doesn't apply to political speech. The Morse Alito/Kennedy concurrence echoes this. A characterization that applies Morse to political speech isn't just "broad" -- it's inconsistent with what Morse actually said.
6.30.2009 7:13pm
Monty:
Did the plaintiff in Morse even claim it was meant to be a political message? I thought he admitted he was just doing it to get attention... I hope the court wouldn't find against someone who steadfastly claimed thier message was political.
6.30.2009 7:27pm
troll_dc2 (mail):

troll_dc2: Tinker allows restriction of speech when there's sufficient evidence that it's likely to be materially disruptive. The question is when Morse kicks in and allows restriction even when there is no evidence of likely disruption.




I see your point, even though it means that the pro-life shirt can be worn and mine cannot. So let me amend my shirt to read: "Choice." On its face, this message is a lot less disruptive. Legally, would my ability to wear it depend on the nature of the community I was in? That is, could it be viewed as disruptive in one and not in another? I think so. But cannot that also be said about the T-shirt that you picture? What is a school principal supposed to do?
6.30.2009 7:27pm
Oren:


Oren: If you think that therefore Thomas's approach is right, say so. But that approach got only one vote in Morse. Morse itself doesn't support restricting political speech. That the Court got it wrong in failing to recognize the political message of "BONG HiTS 4 JESUS" doesn't mean that somehow Morse mandates that courts pretend that all other political speech is nonpolitical.

Nothing could be further from my position.

That the Court got it wrong in failing to recognize the political message of "bons hits" does, however, IMHO mandate that they apply the same uncharitable interpretation to all other plaintiffs.

It's just plain unfair to have school administrators and courts conveniently misinterpret statements that they don't agree with and conveniently recognize the political meaning in statements they do. It's just human nature to see statements that you don't agree with in the worst possible light.
6.30.2009 7:30pm
Laura(southernxyl) (mail) (www):
troll_dc2, so you contend that "pro-choice" = "pro-abortion"?
6.30.2009 7:41pm
troll_dc2 (mail):

troll_dc2, so you contend that "pro-choice" = "pro-abortion"?




Abortion would be one choice, but I was thinking about that; rather, my point in amending the T-shirt was to force Eugene Volokh to make another comment.
6.30.2009 7:50pm
troll_dc2 (mail):
I meant to say "I was not thinking about that." Sorry.
6.30.2009 7:51pm
mga4 (mail) (www):
The Court should overrule Tinker as a matter of policy. Outside of abortion (which is sui generis) minors have essentially no rights not subject to parental control. And historically, the schools acted in loco parentis during the term of the school.

I graduated high school in 1966. Yes, the school authorities engaged in some arbitrary and capricious acts while I was there, but they also maintained a level of discipline that allowed learning to take place. I visited my high school ten years later and I was absolutely shocked at the total lack of discipline. I'd have been expelled if I tried half of what the students got away with.
6.30.2009 9:23pm
Another David (mail):
Yes, the school authorities engaged in some arbitrary and capricious acts while I was there, but they also maintained a level of discipline that allowed learning to take place.


And if people learned from grade school to deal with the public expression of political opinions other than their own, the world would be a better place.
6.30.2009 9:34pm
josh bornstein (mail) (www):
Monty,

Did the plaintiff in Morse even claim it was meant to be a political message? I thought he admitted he was just doing it to get attention... I hope the court wouldn't find against someone who steadfastly claimed thier message was political.


Monty,
The problem with your idea (which does seem attractive on many levels) is that it could yield unfair results. For example: You and I communicate the exact same message to listeners. I later explain that it was done just for attention. You later point out the sociological and political subtext. By your analysis, my speech could be restricted and yours could not, even though it appeared identical in every respect to all observers/listeners.

This does not strike me as fair.
6.30.2009 9:39pm
arbitraryaardvark (mail) (www):
Does anybody know how much of the $50,ooo settlement Morse got to keep after he paid his lawyer?
6.30.2009 10:06pm
theBuckWheat (mail):
The root of the issue of the free speech of students began when we allowed government to go beyond the laudable goal of making sure every child received a proper education and put government in charge of actually running schools.

The short answer is: get government out of the business of schooling our children. Prior to this usurpation, parents were responsible for this function. It is time to return it to its rightful place. If some parents cannot afford to do it, then please let us have that discussion. Maybe vouchers are a good idea after all, no matter what educrats and teacher's unions say.
7.1.2009 9:52am
troll_dc2 (mail):

And if people learned from grade school to deal with the public expression of political opinions other than their own, the world would be a better place.



The problem with this assertion is that it is a "should." The problem with "shoulds" is that they indicate frustration without offering a clue as to what to do to turn the hoped-for goal into reality.

I quite agree with the substance of the assertion, but it is a cop-out to make the statement and walk away. So how can people learn to deal with the public expression of political opinions other than their own?

This is a widespread problem. It affects not only warriors in the battles over abortion rights and gun rights, but also even those who would censor or ban so-called hate speech or what might be called inconvenient speech. Liberals and conservatives would ban or shout down different people because of different topics, but they seem to share the mindset that this is how you fight for your side.

So how do they come to understand what free speech is really all about? How do they learn what civil discourse is? How do they get to see that their own viewpoints may be attackable because they are based on incomplete information, misleading and unexamined statements by others, or their own unexamined beliefs? Can they even understand that a major value of being exposed to the other side is that they have an opportunity to review their own position?

It cannot be just the schools that have to do better; the teachers are not necessarily good at this and may in fact be part of the problem. As usual, it all falls back on the family. So we are in trouble. I have no answer.
7.1.2009 10:04am
Another David (mail):
Well, yes, that's why you let the students express their political views as they wish. They learn by interacting with people displaying those slogans and suchlike in an environment where screaming arguments aren't allowed. Not every lesson is learned through a teacher talking at his or her students.
7.1.2009 12:56pm
troll_dc2 (mail):

Well, yes, that's why you let the students express their political views as they wish. They learn by interacting with people displaying those slogans and suchlike in an environment where screaming arguments aren't allowed. Not every lesson is learned through a teacher talking at his or her students.



I agree, but a lot of students have never been exposed to an exchange of views in a form other than a screaming match or a dismissive putdown. Ideally, teachers could show students how to interact civilly (and usefully) with people who do not think in the same way that they do, but I suspect that few teachers are trained to do so or even want to do so.
7.1.2009 3:15pm
subpatre (mail):
Oren and J Bornstein overreach; not every message can or should be analyzed to find their imagined or potential 'sociological and political subtexts'. Frederick advocated illegal drug use with his "BONG HiTS 4 JESUS" sign, and made no pretension of political speech in any court.

When a high-school student yells "Blow me!" it doesn't have to be reviewed as a protected political statement of solidarity and support for the gay rights movement. Sometimes a cigar is just a cigar.
7.1.2009 4:52pm
wfjag:
It's decisions such as these, and statements made on this and the related post on this, that lead me to conclude that Justice Thomas was basicly right in Safford Unified School District #1 v. Redding, 2009 U.S. LEXIS 4735 (June 25, 2009), and that Morse, Tinker, and all other attempts by the judiciary to decide the issues are exercises in vanity.

Thomas, concurring in the judgment in part and dissenting in part, wrote:


The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which "the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order." Morse v. Frederick, 551 U.S. 393, 414, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007) (THOMAS, J., concurring).

The result of following this logic is that parents who did not like actions by principals, teachers, etc., would go to the school board, instead of running to court. School boards are elected (and board members can usually be reached at home, by phone, at 3 AM, if necessary). So, while I think that strip searching a child for Rx Advil is outrageous, I think it would be more effective a deterent to have the principle bet his job, than see if a judgement (including attorneys' fees) can be collected from the school district (and, in the absence of paying a judgment, there might be money for things like tutoring programs for students who need that, or for music, art or other programs that cash-strapped school systems are eliminating).

As, IMO, the picture on the T-Shirt could be used in a Junior High or High School level biology text, I see nothing offensive about it. If the principle disagrees, then let him defend his position before the school board and school's Parent-Teacher Association meeting. Who knows, by returning power to the school board -- and, hence, returning it to parents who can attend board meetings and vote to elect or defeat board members -- parents might (again) believe that they should take an interest in the schools their children attend.

It's not as if having the courts supervise schools and determine standards has resulted in such great schools. The more interventionist and legalistic the courts have become towards schools, the poorer the performance of schools seems to become. This isn't to say that the courts are at fault for declining standards. Rather, it is to say that the courts have proven ineffective in preventing the decline.

IMO, one of the major problems is that Judges and attorneys suffer from the "if your only tool is a hammer, all problems must be nails" effect. The inclination of lawyers is to threaten suit, and to sue. The inclination of Judges is to find statutory or constitutional authority under which to announce standards. However, neither Judges nor attorneys have any especial knowledge as to motivating students to learn (that's not to say that all teachers do, either. Still, in my experience, there were a few, and those few had lasting impact on me and others I went to school with). Accordingly, I think that the best result would be for the courts to conclude that schools are given power to act in loco parentis, so that absent extraordinary circumstances -- even beyond those in Redding -- the courts will not intervene, and so, offended parents should call their school board members (and if sufficiently offended, call them at 3 AM if necessary, to ensure that the matter is on the agenda at the next school board meeting), and then the issues will be resolved there.*

This isn't a perfect solution, but, likely an improvement over the existing one.

* In the case of how to deal with shirts with slogans, brand names, etc., the easy solution is a dress code -- plain, boring colors and styles. Not fashionable, but, the object is to minimize disruptions so that there is an opportunity for teaching and learning. If you want to make a fashion statement, go to the Mall. If you want to make a political statement, go to a rally. In any event, do it on your own time and not so others are subjected to your personal opinions about the importance of your personal opinions.
7.1.2009 6:02pm
David Schwartz (mail):
Frederick advocated illegal drug use with his "BONG HiTS 4 JESUS" sign, and made no pretension of political speech in any court.
I find it hard to believe that anyone familiar with the case honestly believes that.
7.1.2009 8:11pm
Oren:


When a high-school student yells "Blow me!" it doesn't have to be reviewed as a protected political statement of solidarity and support for the gay rights movement. Sometimes a cigar is just a cigar.

Nor does it need to be, since offensive statements shouted at other students (or at teachers) are disruptive under Tinker.


Frederick advocated illegal drug use with his "BONG HiTS 4 JESUS" sign, and made no pretension of political speech in any court.

If that sign advocated drug use, then the pro-life shirt advocated illegally blocking a clinic entrance. If you can't apply your own standards in a consistent manner then perhaps you aren't judging by any standard at all.

Of course, one could plausibly read it that way, but you could also read it in a permissible way. In the case of ambiguity, the permissible interpretation should always win.
7.1.2009 9:30pm
subpatre (mail):
David Schwartz writes: I find it hard to believe that anyone familiar with the case honestly believes that. [Frederick made no pretension of political speech]

Interesting that Mr. Familiar-with-the-Case doesn't quote this political speech claim. Nothing in the oral transcript makes that claim, and several times the event is (unremarkably and uncontested) referred to as a 'joke about drug use'.

In contrast: "To me, it's absurdly funny," Frederick, now 23, said in a recent conference call with reporters organized by the ACLU. "The phrase was not important. I wasn't trying to say anything about religion. I wasn't trying to say anything about drugs. I was just trying to say something. I wanted to use my right to free speech, and I did it." -WaPo

I don't like the decision, but claiming that "BONG HiTS 4 JESUS" was a political statement —when its proponent denies that— is transference of your own wishes. Next time don't push a stoner to the SCOTUS, and don't let the stoner sue the principal for BigMoney® until after the decision.

Oren wrote,"If that sign advocated drug use, then the pro-life shirt advocated illegally blocking a clinic entrance"

News flash: The phrase 'bong hit' means illegal use of a controlled substance; a fact agreed to by the respondents. There is nothing in the Morse v. Frederick record supporting your interpretation. Your claim that the shirt advocates 'illegally blocking clinics' is starting to sound irrational.
7.1.2009 11:28pm
David Schwartz (mail):
subpatre: Your reading comprehension failed you. To repeat the quote I'm disagreeing with:

Frederick advocated illegal drug use with his "BONG HiTS 4 JESUS" sign, and made no pretension of political speech in any court.
Notice the "and" in there? It's important.
7.1.2009 11:57pm
subpatre (mail):
David Schwartz writes, "Notice the "and" in there? It's important."

Indeed, 'and' is important. Frederick advocated illegal drug use and made no pretension of political speech in court.

If Mr. Schwartz believes Frederick claimed he was engaging in political speech —with its attendant Constitutional protections— the solution is simple . . . post a cite showing that.

The obstacle is a record showing Principal Morse discussed political speech protections and their limits (Tinker, Kuhlmeier etcetera), amici discussed political speech, individual justices discussed political speech, and the Court's decision(s) discussed political speech. But Frederick did not.
"Given [Frederick’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs." —Chief Justice Roberts, Opinion of the Court [emphasis added]
Facts matter.
7.2.2009 10:32am
Oren:

News flash: The phrase 'bong hit' means illegal use of a controlled substance; a fact agreed to by the respondents

Sure is. Simply because bong hits are illegal does not strip respondents of the right to make reference to them.


Your claim that the shirt advocates 'illegally blocking clinics' is starting to sound irrational.

I don't claim that at all, please reread my post. I claim that it shouldn't be read to advocate anything illegal at all. Of course, consistent with that, I claim that you should read Morse's banner as not advocating illegal activity.

I do claim this -- under any standard of interpretation where an administrator can label Morse's banner to be advocacy of illegal acts, so too can that administrator read this t-shirt to be an advocacy of illegal acts. That is to say, I don't see a salient difference between the two that can be codified as part of a rigorous standard.


I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs.

Note here that the CJ does not base his judgment on whether the banner objectively advocates the use of illegal drugs, only on whether the principal interprets it to do so. What's important, then, has nothing to do with the speech itself, just how the school administrator chooses to characterize it.

Under CJR's formulation, it's enough that some school administrator saw the abortion t-shirt as advocating illegal acts, not that it actually does so.
7.2.2009 11:25am
Another David (mail):
If that was the case, then Frederick's explanation (or lack thereof) would be immaterial. What matters is that the justice confirms that first impression. It's not stating that the school authority's gut reaction is legally infallible, but that, in this case, the judge found that gut reaction to be backed up by the facts of the case.
7.2.2009 11:43am
Oren:

It's not stating that the school authority's gut reaction is legally infallible, but that, in this case, the judge found that gut reaction to be backed up by the facts of the case.


So you are claiming that, objectively speaking, the nonsense on that banner has a singular interpretation for the purposes of evaluating whether it is protected?

Again, I pose the question, may a student (consistent with the Tinker disruption test) wear a t-shirt with a pot leaf on it. No words, just a leaf.
7.2.2009 2:22pm
David Schwartz (mail):
Indeed, 'and' is important. Frederick advocated illegal drug use and made no pretension of political speech in court.
I will gladly refute this once I figure out what it means. Does it mean:

1) Frederick intended to advocate illegal drug use with this message.

2) Objectively, the message advocates illegal drug use.

3) Those who disciplined Frederick for the message reasonably concluded that it did or could advocate illegal drug use.

4) Those who disciplined Frederick concluded that the message did or could advocate illegal drug use, reasonably or not.
7.2.2009 2:25pm
subpatre (mail):
@David Schwartz: Just cite for heaven's sake.


Oren writes "So you are claiming that, objectively speaking, the nonsense on that banner has a singular interpretation ..."

The actual question decided "Was the Principal's [singular] interpretation reasonable?" The obvious answer is 'yes'. Frederick's intentions, evidenced by his further behavior, helped the school's position.

One of the Court's concerns was not making schools nitpick or become legal experts. A good outcome of the otherwise sorry decision was there is no 'bright line'.

[Morse]... stated in her answers to interrogatories that she may very well not have interfered with the banner had it in fact said "Legalize Marijuana." — USSC; Monday, March 19, 2007 10:03AM
There is an obvious interpretation to "BONG HiTS 4 JESUS" as a joking reference to smoke marijuana 'for Jesus'. Frederick (Mertz) essentially admitted to that interpretation by non-defense in questions.

But beyond everything, that interpretation is a perfectly reasonable one. Eugene Volokh's point is that the Court decided it this way. Trying to apply your own decision doesn't work unless you are a SC justice.

For the T-shirt above, conjuring up advocacy to illegally block clinics or 'illegal prevention' from its message is not a reasonable interpretation. Not on its face nor by extension.
7.2.2009 4:00pm
Oren:

But beyond everything, that interpretation is a perfectly reasonable one. Eugene Volokh's point is that the Court decided it this way. Trying to apply your own decision doesn't work unless you are a SC justice.

For the T-shirt above, conjuring up advocacy to illegally block clinics or 'illegal prevention' from its message is not a reasonable interpretation. Not on its face nor by extension.

You have applied two different standards here -- in the former instance you applied a subjective standard of interpretation and in the latter you've applied an objective standard. Which is it?

Oh, and you still haven't answered what happens to the t-shirt that's simply a pot leaf with no words (thus highlighting the fact that you have no standard to apply that does not turn on some subjective understanding of a message by removing the message).
7.2.2009 9:02pm

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