Preventive Law
Preventive Law Corner - “BONG HiTS 4 JESUS” and the First Amendment
By Schwartz & Eichelbaum P.C.
Jul 13, 2007, 08:31

“BONG HiTS 4 JESUS” and the First Amendment

In the latest clash between students’ First Amendment right to free speech and schools’ interests in maintaining a safe and efficient learning environment, the Supreme Court recently held that schools do not violate the Constitution when they restrict student speech at school events, when that speech reasonably can be viewed as promoting illegal drug use. 

Perhaps more widely known as the “Bong Hits 4 Jesus” case, Morse v. Frederick[1] centered on a principal’s enforcement of a school district policy that prohibited messages promoting illegal drug use.  The situation arose when a group of students who, along with other students at their high school as part of a school-sanctioned and school-supervised event, were observing the Olympic Torch Relay proceed down a street that passed by their school unfurled a fourteen-foot banner bearing the phrase “BONG HiTS 4 JESUS.”  Upon seeing the banner, the school principal approached the group and demanded that it be taken down due to the district policy prohibiting messages promoting illegal drug use.  All but one student complied.  The principal confiscated the banner and directed the non-complying student to report to her office, where she subsequently suspended him for ten days.

The student filed suit, arguing that the school board and the principal had violated his First Amendment right to free speech.  The court first rejected the student’s argument that this was not a “school-speech case,” i.e., that the unfurling of the banner did not occur at a school event.  The court noted that the students’ participation in the event occurred during normal school hours, was sanctioned by the principal as an “approved social event,” was supervised by school personnel, and involved performances by the school band and cheerleaders.  Furthermore, district policy provided that students participating in “approved social events” were subject to the district’s rules regarding student conduct.  Thus, in the court’s mind, this was clearly a school event.

The importance of that determination is that students’ First Amendment rights while in school are restricted “in light of the special characteristics of the school environment.”  Thus, while the government’s ability to restrict speech is generally limited, a school setting requires that the government more freely be able to control speech in order to maintain its learning environment.

Before considering whether the school policy prohibiting speech promoting illegal drug use was within the government’s expanded freedom to restrict speech in schools, the court addressed the actual message on the banner and determined that it reasonably could be viewed as promoting illegal drug use.  Thus, the speech at issue was not political speech, but rather was reasonably interpreted by the principal as speech that advocated the use of illegal drugs.

Finally, the court reached the question whether a school could restrict speech at a school event, when that speech reasonably could be viewed as promoting illegal drug use.  Looking back to previous school-related free-speech cases, the court first cited the principle that students’ First Amendment rights while in school are circumscribed in light of the “special characteristics” of the school environment.  Next, the court considered its previous Fourth Amendment search and seizure cases, which, along with those cases in which First Amendment free speech was involved, the court cited as recognizing that deterring drug use by schoolchildren is  an “important—indeed, perhaps, compelling” interest.  Taking these two factors into consideration, the court held that schools are allowed to restrict student expression that they reasonably regard as promoting illegal drug use.[2]  Thus, because the principal reasonably interpreted “BONG HiTS 4 JESUS” to promote illegal drug use, and because the district prohibited messages promoting illegal drug use, and because this district policy was not unconstitutional, the court found for the district and the principal and against the student.

A review of the concurring and dissenting opinions demonstrates the spectrum of differing views on this subject.  Justice Thomas, concurring, declared his belief that the Constitution was not intended to afford students any right to free speech in public schools.  Justices Alito and Kennedy, also concurring (yet taking a view opposite that of Justice Thomas) cautioned that the court’s decision should not be read to endorse the argument that the First Amendment permits public schools to censor any student speech simply because it might interfere with a school’s “educational mission.”  Thus, although they agreed that schools could prohibit speech promoting illegal drug use, they professed their regard for that prohibition as “standing at the far reaches of what the First Amendment permits.”  Justice Breyer, also concurring, would have avoided the constitutional question altogether and decided the case strictly on the basis of qualified immunity.  Justice Stevens, writing in dissent along with Justices Souter and Ginsburg, disagreed with the court’s decision.  Although they would not find the principal liable for her actions, the court’s ruling, they said, went too far beyond the parameters allowed by the First Amendment.

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