U.S. Supreme Court Upholds Limits on Student Speech at School
2007-07/03 Christopher M. Toner and Jeffrey T. Jones

On June 25, 2007, the United States Supreme Court ruled that a school district had not violated a student’s First Amendment right to free speech when it required the student to remove a banner from a school-sanctioned event that stated “Bong HiTS 4 Jesus”.  This case limits a student’s First Amendment right to free speech while at school where a student is promoting illegal drug use.  As the defendant advocated drug use in a banner he displayed at a school event, the Court found that the district could order the student to remove the banner.

On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah.  The torchbearers were to proceed along a street in front of Juneau-Douglas High School while school was in session.  The principal of the school allowed the students to participate in the Torch Relay as an approved class trip.  Teachers and students attended.  A student named Joseph Frederick attended the rally, and unfurled a banner that stated “Bong HiTS 4 Jesus.”  Frederick claimed that he was trying to get attention from the television cameras that would be at the event.  The principal demanded that he remove the banner, as she reasonably believed that the banner advocated drug use.  The student was suspended from school for eight days.  Frederick appealed the suspension, and ultimately filed a lawsuit in Federal Circuit Court, and alleged that his First Amendment right to free speech had been violated, and that he had a right to wield his banner.

Ultimately, the U.S. Supreme Court granted certiorari to determine whether Frederick had a First Amendment right to wield his banner.  To begin, the Court acknowledged that had Frederick waived the banner at any other event, other than a school event, that his speech would have been protected by the First Amendment.  However, the Court discussed a long line of cases where First Amendment rights of students could be circumscribed in the educational setting.  The Court found that “while children assuredly do not shed their constitutional rights at the schoolhouse gate, the nature of those rights is what is appropriate for children in school.”

The Court found that Frederick was at a school event, and therefore that his speech could be limited.  Despite argument from Frederick, the Court found that he cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity, and claim he is not at school.  Next, the Court found that the words on the banner clearly advocated drug use.  The best argument offered by Frederick was that that the words were meaningless and funny.  The Court rejected this argument, and found that those who viewed the banner would reasonably believe that it advocated illegal drug use.  The Court noted a consistent policy that deterring drug use by schoolchildren is an “important – indeed, perhaps compelling interest.”  In this case, the District prevailed because it could show that deterring drug use is an important goal of the educational experience, and if unchecked, can cause severe and permanent damage to the health and well‑being of young people. 

Justice Stevens drafted a dissent, and argued that punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke a harm that the government seeks to avoid.  Stevens claimed that regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of the other students.  As the District did not show any actual disruption, Stevens and the other liberal members of the Court would have ruled in favor of the student.

CONCLUSION

The special characteristics of the school environment and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.

For questions concerning the above, please feel free to contact Attorneys Christopher M. Toner or Jeffrey T. Jones at (715) 845-4336, who prepared this article, or your Ruder Ware attorney.

© 2007 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
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