Free Speech 4: Speech Advocating Illegal Conduct

Question:  Does the First Amendment of the U.S. Constitution protect a public school student from the consequences of wearing a t-shirt featuring an illegal drug or underage drinking to public school or a school-sponsored event?

Answer:  No.

In Morse v. Frederick, a student appealed his school suspension, claiming that his high school had violated his First Amendment right to freedom of expression. Morse v. Frederick, 551 U.S. 393, 396 (2007).

In that case, a school district sponsored an event during school hours at which students and staff could stand in front of the high school, on either side of the street, to watch the Olympic Torch Relay as it passed by the school on its way to the winter games in Salt Lake City, Utah. At the appointed time, students and teachers left their classes and assembled on either side of the street in front of the school. Once outside, teachers and administrators monitored the students' actions.

Frederick, a high school senior, and his friends chose to stand on the side of the street across from the school. As the torchbearers and camera crews approached, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily read by the students on the other side of the street. The school principal crossed the street and directed the students to take down the banner because the banner appeared to advocate illegal drug use in violation of school policy. All but Frederick complied. The banner was confiscated and he was subsequently suspended from school.

On review, the U.S. Supreme Court held that the school officials did not violate the First Amendment by confiscating the banner and suspending Frederick. The Court concluded that the “substantial disruption” rule of Tinker was not the only basis for restricting student speech. Considering the special characteristics of the school environment and the government’s interest in preventing student drug abuse, the Court decided that the school was entitled to take steps to safeguard the students entrusted to their care from speech that could reasonably be regarded as encouraging illegal drug use. Based on this reasoning, courts have given public schools a fair amount of leeway in deciding whether student expression poses a danger to their other students or staff.