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Talking Points

Question:
Do school authorities violate the Free Speech Clause of the First Amendment by restricting student speech at a school-supervised event when the speech may be viewed as promoting illegal drug use?

Morse

Frederick

1. Do school officials have the authority to restrict student speech that they perceive as harmful to other students?

Affirmative. Yes.
Although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” school administrators must have the ability to restrict speech that is harmful to other students, in this instance promoting illegal drug use. Frederick displayed his banner at a school event. It was the duty of the principal to take action against him.

Negative. No.
Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Here, a student was punished only because his message was deemed unpopular/controversial by school principal Morse. The banner did not disrupt the school-related event. The principal’s actions were based solely on opposition to the content of the banner, and the First Amendment protects against such acts of censorship.

2. If the banner could be interpreted as promoting illegal drug use, do schools have a compelling interest in preventing such messages at school-supervised events?

Affirmative. Yes.
Illegal drug use can have serious adverse consequences on users, including death. The school has a responsibility to discourage the use of illegal drugs. Frederick was advocating illegal drug use. The state has a compelling interest in preventing such messages. Even if Frederick’s message were nonsensical, it could easily be interpreted as promoting illegal drug use – “bong hits.” Thus, the school’s compelling interests remain.

Negative. No.
The “Bong Hits 4 Jesus” banner did not explicitly promote illegal drug use. It is a nonsensical phrase. Any interpretations are a result of the viewer’s perceptions. Even if the banner did have a pro-drug message, Frederick, was not engaging in illegal conduct. The state may not censor his message simply because it is unpopular. Afterall, how could one advocate for change in the law if one cannot advocate for making something legal that currently is illegal?

3. Should student speech be restricted if it can be interpreted as a distasteful, school-endorsed message?

Affirmative. Yes.
Perceptions by others can have a role to play in restricting speech. The term “bong hits” is usually associated with illegal drug use and schools have a compelling interest in preventing a student from advocating illegal drug use. The fact that Frederick displayed the banner at a school event gives the school reason to remove it so that no one would think that the school either explicitly or implicitly endorsed its message.

Negative. No.
Speech should not be restricted simply because it can be misinterpreted by others. If this is the criteria for restricting speech, then all speech can potentially be restricted since speech can easily be misconstrued. This interpretation would drastically undermine the protections of the First Amendment. No third party would seriously think that the school was endorsing Frederick’s message.

4. Does the First Amendment only protect the expression of coherent or rational thoughts?

Affirmative. Yes.
The First Amendment’s protection of freedom of speech is meant to promote the spread of ideas. As such, it only protects coherent or rational thoughts. Nonsensical speech is not protected by the First Amendment or, at least, is given less protection than rational speech. Even if Frederick’s speech were simply nonsensical, Morse could have restricted it without violating the First Amendment.

Negative. No.
Nonsensical speech is protected by the First Amendment. The principal does not have the right to determine what speech is or is not protected by the First Amendment. Under most circumstances, the First Amendment gives individuals the right to say whatever they wish so long as they are not harming others or interfering with their rights. No one was harmed by Frederick’s actions.

5. Should school officials be immune from legal liability when they take actions in good faith to protect other students from what they consider offensive speech?

Affirmative. Yes.
School principals have to act in real time and respond to events as they arise. A principal is not a constitutional lawyer and does not know the nuances of the First Amendment. Even if Frederick’s speech were protected by the First Amendment, when a principal acts in good faith to protect other students, the principal should be given immunity from civil suits for such actions.

Negative. No.
Those who violate the constitutional rights of others, even inadvertently, must not be immune from the consequences of their actions. Such violations restrict constitutional rights and violators must be held accountable. Therefore, Morse should be held accountable for violating Frederick’s rights and compensate him as the law demands.