Student Free Speech Rights Limited in Supreme Court Ruling

July 2, 2007

Summary

• A significant decision at the end of the U.S. Supreme Court’s 2006-2007 term limits the free speech rights of students.

Background 

The U.S. Supreme Court has issued a decision decided by a narrow majority that reflects students free speech rights.

• In Morse v. Frederick, the Court ruled that Juneau, Alaska high school principal Deborah Morse did not violate student Joseph Frederick’s free speech rights when she and other school officials disciplined him for holding up a banner at an off-campus, school-sponsored event.  The widely publicized banner, “Bong Hits 4 Jesus,” contained references to a marijuana water pipe and the process of extracting marijuana smoke from the pipe.

Student Free Speech 

Morse had two primary holdings:  first, that student freedom of speech is not co-extensive with the rights of adults, and second that schools can regulate pro-drug messages.  Because the Court expressly weighed the danger of drug use more highly than the First Amendment claim, an important underpinning of the decision appears assert that schools have a role in maintaining student welfare.   Neither the majority nor the dissenting opinions held principal Morse personally liable for the disciplinary action. 

It should be emphasized that Morse specifically focused on the issue that speech promoting drug use (as the student banner was presumed to do) was disruptive to school life and student safety, and as such could be restricted under several earlier Court decisions in the 1960s and 1980s.  Chief Justice Roberts, speaking for the five-justice majority (with one partial concurrence) emphasized in the decision that promoting illegal drug use was the only thing it proscribed and Justice Alito agreed, saying that the decision restricted speech that threatens “the physical safety of students” and “does not endorse any further extensions” of speech limits.  School administrators should take heart from the qualified immunity aspects of the decision.   

Impact of Decision 

Bracewell & Giuliani believes that this decision gives school administrators a basis for specific actions.  Student speech activities that disrupt school life by threatening safety or promoting drugs can be regulated, with discipline justified for violating school policy.  Our Public Law Group has decades of experience in advising school administrators and school boards on complex constitutional and public policy issues, and would welcome the opportunity to advise you on current or possible policies that impact these important issues.