Endangering the Free Speech of Those Most Concerned

by Liberty and Power

Those who support and benefit from drug prohibition seek to stifle debate whenever possible because they know that the only way they win the argument over drug policy is by not having the argument in the first place. Historically this tactic has been very successful.

Their latest opportunity comes in the form of Morse v Frederick a dispute to be heard before the U.S. Supreme Court. It involves high school student Joseph Frederick who showed up at a school sanctioned, off campus, event wearing a tee shirt reading “Bong Hits 4 Jesus”. While this slogan was juvenile and probably offensive to some people, it clearly also had a political policy connotation and thus was protected by the 1st Amendment. Nevertheless, as Kris Kane Executive Director of Students for a Sensible Drug Policy (SSDP) informs us the student “sued his principal and school board after receiving a 10-day suspension. Losing the case in federal district court, Frederick won his appeal to the 9th Circuit U.S. Court of Appeals. When his school board appealed that ruling, the Supreme Court accepted the case.”

Brooks M. Beard, lead counsel, and Alex D. Kreit have filed a very powerful Amicus Curiae brief on behalf of SSDP supporting Frederick. This document does an excellent job of demonstrating just how vile and damaging an attack on political free speech the government’s pursuit of this case is. They make the following three important points:

1) STUDENTS HAVE A CONSTITUTIONAL RIGHT TO DISCUSS ISSUES RELATING TO DRUG POLICIES, ESPECIALLY BECAUSE DRUG POLICIES DIRECTLY AFFECT THEIR DAILY LIVES AND THUS RELATE TO SOME OF THEIR CORE POLITICAL CONCERNS

2) PUBLIC SCHOOL ADMINISTRATORS SHOULD NOT BE PERMITTED TO RESTRICT STUDENT SPEECH RELATING TO DRUG POLICY SIMPLY BECAUSE THEY HAVE A DIFFERENT VIEWPOINT

3) PUNISHING RESPONDENT’S SPEECH WOULD STIFLE LEGITIMATE STUDENT SPEECH ABOUT DRUG POLICY

Cross posted on The Trebach Report

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More Comments:

Keith Halderman - 3/7/2007

You are right being suspended from school may be more of a break than a punishment, nevertheless it is intended as a punishment just as jail is intended as a punishmen even though some people my find being put in jail to be an advantage. Also, any statement that is favorable to the currently prohibited drugs is political because they are kept illegal by the political process. In addition the statement is not anti-Christian it is expressing one interpretation of Christianity, see the Rastifarians.

Anthony Gregory - 3/3/2007

How is being suspended from acces to a dubious government "service" comparable at all to being thrown in jail? I think this is a gross comparison. Otherwise, refusing to let someone into a public-subsidized college, based on, say, his academic performance, would be as wrong as jailing someone based on his academic performance. Similarly, ending public schools altogether would be the same as putting all schoolkids in jail. I don't see it.

Furthermore, how can you say most people would see his shirt as an attack on marijuana prohibition? I see it more as a message of promotion of marijuana and an attack on Christianity — not that such speech is any less to be respected by the law than political advocacy.

Keith Halderman - 3/3/2007

Suspension from school is a punishment just as being thrown in jail is a punishment. The student was punished for sporting a slogan that most people would interpret as an attack on marijuana prohibition which is a public policy put and kept in place by political means.

Anthony Gregory - 3/2/2007

I don't believe government at any level has a right to violate an individual's rights, whether or not they are protected by the Constitution. Free speech, within the context of private property, should always be respected. And I support free speech at public schools (as well as ridding of mandatory attendance, and ultimately of the schools themselves). But is suspension from school a violation of free speech? I'd say it is a violation of the spirit of academic freedom. But how is not letting someone come to school, when they're usually forced to come to school (as if that's better), a First Amendment issue? What does it have to do with Congress? The First Amendment, unlike the rest of the Bill of Rights, is explicit in singling out Congress. Even if you believe the 14th Amendment incorporated the Bill of Rights, how could it incorporate this amendment that is so explicitly targeted on Congress?

I don't see why free speech about Jesus and bong hits, which I believe in, is any more important to protect because it's supposedly political, by the way.

Mark Brady - 3/1/2007

Since the 1940s Supreme Court decisions have held that the First Amendment applies to children attending public schools with the qualification that regard must be paid to the maintenance of order in those institutions.

Keith Halderman - 3/1/2007

I believe you are right about that, however, when the speech is political that is when its protection is most important.

Keith Halderman - 3/1/2007

State or local governments, and the schools are a branch of local government, do not have the right to violate an individual's constitutional protections.

Anthony Gregory - 2/28/2007

I fail to see how a school suspending anyone for whatever reason is a violation of the First Amendment. Suspension in this case is unfair and, in terms of school policy, draconian — but it is, in the end, a local government body refusing to admit a student at a public school for a period of time. It is, first off, not clearly a rights violation and, secondly, not a First Amendment issue, since the First Amendment applies to Congress, rather than local public schools.

Mark Brady - 2/28/2007

Thanks for bringing this to our attention. One brief observation. You write that "While this slogan was juvenile and probably offensive to some people, it clearly also had a political policy connotation and thus was protected by the 1st Amendment." Slogans don't need to have a "political policy connotation" to be protected by the First Amendment.