Is the message on the t-shirt in the following scenario constitutionally protected free speech?
The annual Smallville Fair is the community event of the year. Attendance is always high, with community members going to enjoy the thrill rides, the exhibits, and the food, as well as to “see and be seen.” Principal Cuthbert of Smallville High School is there, and as he turns the corner (around the “Guess Your Age or Weight” exhibit,) he is shocked by what he sees. In front of the “Bearded Lady” exhibit is the star Smallville High School quarterback, senior Coy Gunner. Gunner is wearing a green “tee-shirt” depicting a Christ-like figure smoking a marijuana cigarette; in large yellow letters on the front of the shirt are the words “Joints For Jesus.” On the back of the shirt (again, in large yellow letters) is the following: “WWJS: What Would Jesus Smoke?!”
Principal Cuthbert immediately confronts Gunner, exclaiming “Coy Gunner, I cannot believe you would wear such a disgusting shirt. You have offended my Christian principles and beliefs, as well as the religious beliefs of countless numbers of Smallville
citizens attending this fair. Further, you have disgraced Smallville High School. As the star quarterback of our football team, you of all people should know that you are a role model for your fellow students, as well as younger kids in the community. I will see you in my office Monday morning at 7:30 a.m..”
Gunner arrives at Principal Cuthbert’s office on Monday morning to discover that Principle Cuthbert has decided to suspend him for ten school days. Gunner objects, saying “I remember in civics class that Mr. Campbell told us we have the right to free speech. I object to the suspension, and if you don’t change your mind, Principle Cuthbert, my dad knows a good attorney who might want to speak with you.”
Is the message on Gunner’s shirt constitutionally-protected free speech?
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The message on this shirt would certainly be free speech and would be protected by the Constitution. So far as we can tell from the scenario given, the Smallville Fair was not a school function. Because it was not, Principal Cuthbert had no right to suspend Gunner for wearing that particular t-shirt.
This scenario is clearly meant to play off of the 2007 Supreme Court case Morse v. Frederick. In that case, students at a high school in Alaska were permitted to leave school and go across the street to watch the Olympic torch relay go past (this was in 2002). One student displayed a banner reading “BONG HiTS 4 Jesus.” He was suspended for doing so and appealed on the basis that the banner was protected by the Constitution.
The Supreme Court rejected the student’s argument. It held that the banner clearly promoted drug use and that the students were at a school function at the time the banner was displayed. Therefore, the student’s rights were much more limited than they would have been if the torch relay had not been connected with school.
In Gunner’s case, we cannot say that the event was a school event. Therefore, the t-shirt message is offensive but is still protected by the Constitution.
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