Patterico's Pontifications

3/19/2007

Courthouse Quote of the Week

Filed under: Constitutional Law,Court Decisions,Education,General — Justin Levine @ 2:45 pm



Courtesy of the Supreme Court oral arguments in the case of Morse v. Frederick (popularly known as the “Bong Hits 4 Jesus” case).

Before the quote, a quick background on the case –

In January 2002, the Olympic torch was being carried along Glacier Avenue in Juneau, Alaska, which runs in front of a high school. While the torch was passing by, school senior Joseph Frederick held up a large banner for the media that said “BONG HITS 4 JESUS.”  The school’s principal grabbed the sign away from Frederick and later suspended him for ten days. Frederick sued.

The 9th Circuit found a violation of Frederick’s First Amendment rights. It not only ruled that Frederick’s lawsuit could go forward – but that the law on the issue was clear enough such that the principal would not be entitled to qualified immunity from personal money damages.

Much of the court debate (at both the Supreme Court and the 9th Circuit) discusses 3 past cases involving student speech:

Tinker v. Des Moines Independent Community School District (1969) – Ruling that schools can’t prevent students from wearing black armbands signifying opposition to the Vietnam War.

Bethel School District v. Fraser (1986) – Holding that a high school student did not have a First Amendment right to give a sexually suggestive nominating speech for a student office candidate at a school assembly.

Hazelwood School District v. Kuhlmeier (1988) – Holding that high school students did not have a First Amendment right to publish articles on pregnancy and divorce in a school newspaper when the newspaper was produced in a journalism class as part of the course curriculum and paid for with school money.

After the Supreme Court spent nearly an hour debating the notable tensions in its own past precedents listed above, it remained unclear how the Court might ultimately rule in Morse v. Frederick. However, it does seem clear that the Court will overturn the 9th Circuit on the side issue of qualified immunity for the school’s principal in the case. Which brings us now to the courthouse quote of the week –

CHIEF JUSTICE ROBERTS:   Can we get back to what the case is about. You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it’s disruptive. But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I’ve got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it.

MR. MERTZ:    Mr. Chief Justice, there are two different time points we have to talk about. There’s the heat of the moment out there on the street, but then later back in the office when she actually decided to levy the punishment after she had talked to him, after she heard why he did it and why he didn’t do it, after she had had a chance to consult with the school district’s counsel. At that point in the calmness of her office, then she should indeed have known it. And she did testify that she had taken a master’s degree course in school law in which she studied Kuhlmeier and Frazier and Tinker. So —

CHIEF JUSTICE ROBERTS:   And so it should be perfectly clear to her exactly what she could and couldn’t do.

MR. MERTZ:   Yes.

JUSTICE SCALIA:   As it is to us, right?

(Laughter.)

Case closed. The school principal ain’t paying a dime on this one.

17 Responses to “Courthouse Quote of the Week”

  1. Man, if the defense “I didn’t know it was illegal [tortious]” were recognized by any other court. If the prosecution were required in every case to show that the defendant had studied criminal law. Or the plaintif in every civil case that the defendant understood Palsgraf.

    nk (cbd34d)

  2. from nyt;

    “As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Mr. Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

    In every case cited, school grounds was where
    the actions occurred. Note the salient sentence
    above; “…students were allowed to LEAVE the school grounds to watch”.

    But you may be right about the result due to the mindset of this SCOTUS.

    semanticleo (75845c)

  3. Man, if the defense “I didn’t know it was illegal [tortious]” were recognized by any other court.

    No kidding — a mistake of fact can be a defense, but a mistake of law almost never can. I like to think of the distinction as the law being not only an ass at times, but an egotistical one at that.

    Alex (2edb43)

  4. I hope that they will decide it on a “yelling theatre in a crowded fire-house” rationale. There is nothing protectible in this kind of “speech”. The rationale Justice Roberts was implying is stupid, with all kinds of consequences in other areas of the law, as I implied in my first comment.

    nk (cbd34d)

  5. Nk: why do you think holding up a banner saying ‘bong hits 4 jesus’ is inherently unprotected? And how is it remotely similar in terms of the threat to public safety to the “fire in a crowded theatre” argument?

    Granted that I have not yet read the argument transcript, but it seems fairly clear to me from first principles that off-campus student speech isn’t punishable by the school.

    aphrael (e0cdc9)

  6. The student should not be punished, and his record should be cleared of any punishment imposed.

    But the Principal should not be liable to the student, either.

    vnjagvet (d3d48a)

  7. The principal may not be paying a dime in damages but it’s possible she had to hire private counsel since claims were asserted against her personally. Perhaps the school or her union (if any) paid for added representation or will reimburse her, but maybe not.

    Add to that the anguish she experienced from a lawsuit asserting a personal claim and the time spent on two high level appeals. If young Mr. Fredrick wanted to get even with his principal, I’d say he succeeded.

    DRJ (53e939)

  8. Hey Patterico,

    What do you think about Ken Starr’s argument that schools should be able to restrict any speech that conflicts with the basic mission of the school?

    I imagine you’ve heard that a bunch of religious organizations are teaming up on the side of Mr. Fredrick.

    Russell (a32796)

  9. Aphrael,

    I was very careful to say “theatre in a crowded fire-house”. I think that if I were to walk into a firehouse and yell “theatre” I could be asked to leave, thrown out, arrested for trespassing or disturbing the peace. The kid was just being a hooligan disrupting an event which had nothing to do with either religion or marijuana use. He might as well have mooned the runner. He offered nothing of value to his potential audience and detracted from the value of what that audience had actually come there to see.

    nk (cbd34d)

  10. nk: ok, fair point about the ‘theatre in a crowded fire-house bit’.

    that said … the kid was on a public street. surely he isn’t required to offer something of value in order to be on a public street.

    it would be one thing if he’d walked into someone’s private gathering and interrupted it, trespassing in the process; but that wasn’t the case in this story.

    also … even if he *had* done that, it wouldn’t be *the school’s* business to punish him; it would be the business of the city authorities.

    aphrael (e0cdc9)

  11. Aphrael,

    There is more than one case here. The principal assaulted him (actually robbed him) when she took away the banner. She may have also violated state law when she suspended him. But those depend on state law remedies.

    The Bivens type First Amendment cause of action is predicated on a violation of his First Amendment rights. Otherwise there is no federal case. I, Orwellianly, have both a broad and restricted view of First Amendment protected speech. In (not bound) a nutshell, that it is really the right of the audience and not the speaker’s. If I am just “expressing myself” before people who have better things to see and hear, I’m just being a jerk.

    nk (cbd34d)

  12. Its clearly a violation of FREEDOM OF SPEECH y the liberal left-wing school officials i mean that prinipal should be suspended for the nest year

    krazy kagu (64f044)

  13. Bong Hits 4 Patterico!

    No kidding — a mistake of fact can be a defense, but a mistake of law almost never can.

    What if mistake in question was not with regard to criminal law, but regarding what constitutes a school event? That’s more likely to fly as a mistake-of-law defense, I think.

    Daryl Herbert (4ecd4c)

  14. he was off school grounds, and the principal assaulted and battered him by taking away his banner by force. he not only has the right to sue, he had the right to defend himself by force.
    nk, you’re an audience of one, and nobody elected you as the arbiter of good speech (protected) and bad speech (unprotected).
    going to the merits, i support the bong hits part, but not the jesus part.

    assistant devil's advocate (c54e63)

  15. The justices were really on form on this one; they really took apart some of the silly arguments, and effectively conceded that the state of the law was muddled.

    I agree with our host that it’s 9-0 that the principal’s off the hook, and that’s very, very clearly the right result.

    Whether future miscreants can put up signs like this…. I don’t think that’s likely. When you’ve got Scalia on the law and order side (at least a little) the law and order side is likely to win.

    Most interesting will be the court’s articulation of a rule. I expect something that will assist future administrative decisions. It’s a very tough case to draw good rules from.

    –JRM

    JRM (355c21)

  16. ada,

    Off school grounds is a red herring. Was the little creep allowed off school grounds to watch the runner pass through or was the school day over? Are teachers not still “in loco parentis” when they take kids off school grounds on field trips?

    As for “good speech (protected) and bad speech (unprotected)”, I said no such thing. Let me give you an example, so you can understand: If people are listening to a street musician and you step in front of him and start giving them the benefit of your backwoods philosophy and they beat you up, they are not violating your First Amendment rights. They are defending theirs.

    nk (cbd34d)

  17. […] posts are here, here, here, here and here and, as noted at the last link, there are plans to make this incident […]

    Patterico's Pontifications » “Bong Hits 4 Jesus” Student Nets $45,000 (ad4391)


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