Morse V. Frederick

Here are the relevant facts of Morse as set forth by Oyez:

Facts of the case

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse.... The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional....

Question

 Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?

Fraser (p. 1523)

Fraser concerns “lewd, indecent [and] offensive” speech before a captive audience in a school assembly. (p. 1523) Court distinguishes Tinker’s political, anti-war, message. (P. 1523, 1525) But the "lewd" speech in this case was used as part of a speech nominating a candidate for office in student government. So is it sexual speech or political speech?

            Page 1524: “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”  (Notice also the Court’s approval of governmental inculcation of values and attitudes). Id.

            If you read that statement broadly Tinker is reversed (armbands were deemed “inappropriate” in the classrooms). Narrowly – relates to speech that is part of the school curriculum or only applies to “lewd” and “vulgar” speech.

            But also notice that the Fraser Court emphasized that Mr. Fraser’s speech was disruptive (P. 1523) and “could well be seriously damaging to its less mature audience.”  (edited from casebook) And not a restriction of any political viewpoint.

                                    Page 1524 (plus some edited): “Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.  The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school's basic educational mission.”

Suppose Fraser had given the same speech in the schoolyard during recess?  In other words, how important was it in Fraser that the speech was part of a school assembly? P. 1525 (Stevens)

See also Brennan’s concurrence at p. 1525.

            Notice the Court emphasizes the role of public schools in inculcating the “shared values” of society.  In a society that values freedom of thought and freedom of belief, is this an appropriate role for government?  

            Whose values are those to be inculcated into the hearts and minds of all our children? Are any values “shared” in today’s divided nation? Is this where school choice may have a role?

 

Hazelwood

            Suppose Jimmy Olson, cub reporter, submits a story to Perry White his editor and publisher of the Gotham Times.  White decides not to publish the story.  May the State require White to publish Olson’s story?

            No.  The First Amendment would protect the publisher’s right to decide what is published.  Any governmental attempt to protect Olson’s right to have his story published would violate the Publisher’s free speech and free press right under the First Amendment.

            Okay, Now move the story onto a public high school campus.  The school, as part of its journalism class, publishes a newspaper (The Spectrum).  Jimmy Olson, Jr. is enrolled in the Journalism class and submits a story about teenage sexual activity to his publisher, the Principal of the school, Perry White.  The Principal kills the story.

            Should Jimmy Olson, Jr., cub reporter for the Journalism class newspaper, have greater rights to publish over the objections of his publisher than Jimmy Olson, Sr., cub reporter for the Gotham Times?

 Now suppose the school play at Lincoln High this year is Romeo and Juliet.  The student cast members decide they would like to do a modern production of the play complete with hip hop dialogue [e.g. "Yo, R-Boy, zup" who says "wherefore art thou" today, am I right?] and several nude scenes.  The school refuses to allow this and insists that the play be performed based upon the original text of the play.   

Who should decide – Mrs. Jones, the drama teacher and Mr. Smith, the school principal? Or the student Thespians? 

The Court in Hazelwood distinguishes between a student's personal expression (controlled by Tinker) and student speech as part of the curriculum or school-sponsored publication or theatrical production. (p. 1534)  

Hazelwood says this is the test in the latter cases:

“Instead, we hold that educators do not offend the First amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” (p. 1534).

 

Does this also explain Fraser?After all, the purpose of the school-sponsored assembly in Fraser was to teach students about elections and democracy. Was the censorship in Fraser reasonably related to legitimate pedagogical concerns?

Hazelwood: Important Passage

"The question whether the First Amendment requires a school to tolerate particular
student speech—the question that we addressed in Tinker—is different from the
question whether the First Amendment requires a school affirmatively to promote
particular student speech. The former question addresses educators’ ability to silence a
student’s personal expression that happens to occur on the school premises. The latter
question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

 Educators are entitled to exercise greater control over this second form of student
expression to assure that participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material that may be inappropriate
for their level of maturity, and that the views of the individual speaker are not
erroneously attributed to the school. . . .

Accordingly, we conclude that the standard articulated in Tinker for determining
when a school may punish student expression need not also be the standard for
determining when a school may refuse to lend its name and resources to the
dissemination of student expression. 

Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.. . . It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment . . . require[s] judicial intervention to protect students’
constitutional rights." Casebook at p.1461-1462

Tinker vs. Hazelwood Explained

 Casebook at p. 1534:

“The question whether the First Amendment requires a school to tolerate particular student speech – the question that we addressed in Tinker – is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.  The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises.  The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”

 And this at id: 

"Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.. . . It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment . . . require[s] judicial intervention to protect students’ constitutional rights."

Does Hazelwood also explain Fraser? Was Fraser a "school-sponsored" assembly designed to teach students about democracy and civility?