Morse v. Frederick

Morse vs. Frederick, better known by its nickname, Bong Hits for Jesus, is a landmark free speech case. The Supreme Court ruled that schools can restrict speech when it promotes illegal drug use. Morse vs. Frederick has implications for students’ speech on both high school and college campuses.

Imagine a world of thought police and speech codes designed to ensure the protection of the mental health of students. Imagine a world where, at college campuses, speech zones are clearly marked areas lettered A-C, and any joke deemed “derogatory” can be grounds for expulsion. Imagine a world that is obsessed with political correctness, disapproves of parody and satire, and hands down draconian punishments for silly and innocuous acts.

No, I am not plagiarizing the plot of 1984 or Brave New World. I am merely describing the state of college campuses today. As a summer intern for the Foundation of Individual Rights in Education (FIRE), a group dedicated to preserving liberty on college campuses, I was astounded by the prevalence of these speech codes at contemporary universities. For example, Drexel University not only punishes “inappropriate humor” but also “inappropriately directed laughter.” Gettysburg College’s sexual harassment policy requires verbal, continuing consent for all sexual action: brushing, touching, pinching, hugging, etc. Furthermore, rulings such as Morse vs. Frederick (2007) only aggravate the situation by giving administrators more leeway in regulating the campus with respect to student “safety.”

Handing down a 5-4 decision in Morse vs. Frederick, popularly known as the “BONG HiTS 4 JESUS” case, the Court effectively limited the speech rights of high school students. As college students, we should be concerned because, as David French points out in Phi Beta Cons, a blog hosted by the National Review Online:

In every single free speech case I’ve ever argued, the university’s first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder.

On June 22, 2002, Juneau-Douglass HS in Juneau, Alaska, approved, as a class trip, the participation of students and staff in the Olympic Torch Relay. Joseph Frederick met up with his friends across the street from the school and they unfurled a 14-foot banner that read, “BONG HiTS 4 JESUS” as the torchbearer and camera crew passed. Principal Deborah Morse crossed the street and demanded that the banner be torn down. When Frederick denied her request, Morse confiscated the banner and suspended Frederick.

The Supreme Court found no First Amendment violation, citing that schools may regulate speech when the speech seems to advocate or “celebrate” drug use. After all, according to Chief Justice Roberts’ majority opinion:

First, [Bong Hits for Jesus] could be interpreted as an imperative: “[Take] bong hits…”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits” —and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.

Dahlia Lithwick of Slate.com cleverly remarks:

When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say ‘bong hits [will kill you].’

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Furthermore, Chief Justice Roberts cites Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), to aid in the effort to distinguish between political speech and nonsense. While the speech exercised by the Wisconsin Right to Life was “core political speech,” BONG HiTS FOR JESUS is “no doubt offensive to some, perhaps amusing to others.” Thus, the banner that so clearly advocates drug use is too nonsensical to be construed as political speech.

Jokes and jabs at the Supreme Court aside, it is worth pointing out that high school students have always had more limited rights than college students. However, the message that justices took from Bethel School District No. 403 v. Fraser (1986) was that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”

Justice Clarence Thomas takes it a step further, concluding:

In the light of the history of American public education, it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.

Stanley Fish, a blogger for the New York Times, took Thomas’ ambiguous “schools” reference and applied it to public universities as well:

Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account.

While a reasonable argument can be made for the need to preserve order in high schools across the country, college has always been about more than education. College is supposed to be a place where students are allowed to become informed, thoughtful citizens. John Stuart Mill would remind us, “uncontested truth degenerates into dead dogma.” Stay vigilant, lest colleges around the country take Morse vs. Frederick is as a sign that the Court will uphold silly restrictions and punitive actions for meaningless acts. Give me liberty or give me death?

Morse v. Frederick Oral Arguments

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Morse v. Frederick Opinion

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