In regards to Morse v. Fredrick can/should First Amendment law only be made in cases of serious messages? Why or why not?
Background: Morse v. Frederick: 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 court held that even if there were a violation, the principal had qualified immunity from lawsuit. 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. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful
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Some comments here:
- Just on the issue of serious messages, it would be very difficult to limit the 1st Amendment in this way. Think about how hard it would be to define a "serious" message in any fair way. You could argue that, in 1848, a call for women's rights was not "serious" and could have been suppressed. So what is not serious at one time may become serious later. Giving the government the power to decide what is or is not serious would be problematic. So, to me, the 1st Amendment can't and shouldn't be limited in this way.
- You should realize, however, that the ruling in this case is tied really closely to the fact that this was a student across from his school. So this is not really a case about general First Amendment rights. Instead, it is a case about what would disturb the educational process (students in general are not allowed to do things that would disrupt the educational process even if those things would be legal outside of school -- think wearing a T-shirt with a beer ad on it).
Rights cannot be curtailed; however, freedoms can. Freedom is the ability to exercise Rights, and freedom can be restricted if that exercise violates the Rights of another individual. In this case, the student expressed an opinion (which seems to have been calculated to arouse ire) which may have not been school sanctioned, but should not have been forbidden or restricted, as his expression did not impact anyone else's Rights -- the principal finding the message offensive doesn't qualify as a "Right not to read messages I don't like at school sponsored events."
Nevertheless, schools should and do impose some discipline upon the student body for the purposes of efficacious education, and anything that detracts from that should be minimized, but under no circumstances can any discipline impact Rights, but only restrict activities distracting from an educational purpose. Perhaps the principal, rather than pulling rank, should have held up a counter-banner stating "Just Say No!"
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