First Amendment case sparks unlikely alliances

By Anthony Romero and Terry Pell

The First Amendment has a way of inspiring unexpected alliances. A case the Supreme Court began considering Monday, Morse v. Frederick, is providing just that inspiration.

The case is one of the first substantial challenges to student free speech rights in more than 20 years, and it is one which both of our organizations — the Center for Individual Rights and the American Civil Liberties Union — consider vitally important.

The fact that we are solidly together on this case — joined by conservative religious organizations and advocates on drug policy, free speech, and gay rights — tells you something about its compelling nature. For more than 200 years, individuals with otherwise disparate political and ideological views have nevertheless found common ground in their support and defense of the bedrock principle of freedom of speech, and this is one of those instances.

The case began with a seemingly unremarkable incident. On Jan. 24, 2002, Joseph Frederick and his classmates in Juneau, Alaska, were excused from class to watch the Olympic Torch Relay pass by. Frederick stood on the sidewalk across the street from his school and as television crews taped the passing of the parade, he unfurled a banner that read “Bong Hits 4 Jesus.”

Principal Deborah Morse immediately crossed the street and confronted Frederick, demanding he lower the sign. When Frederick refused, Morse grabbed and crumpled up the banner and later suspended Frederick for 10 days — five days for the initial stunt. When Morse disagreed with her decision on First Amendment grounds, citing Thomas Jefferson in his defense, she suspended him an additional five days. Litigation ensued and Frederick’s case, argued by the ACLU, has now made its way to the Supreme Court

This case is not about drugs. It is not about religion. It is about the First Amendment. While some might argue that the message at issue advocated illegal behavior and should therefore rightly be banned, the larger principle at stake — constitutionally protected freedom of speech — is nevertheless fundamental.

The principal, with the support of the school district, engaged in blatant censorship of a student’s speech based on its content alone. Under this expansive and incoherent theory, a student could presumably be punished for wearing a “Go Speed Racer” T-shirt because the message might encourage student drivers to exceed the speed limit.

The Supreme Court has long held that speech cannot be banned as “offensive” simply because those in positions of authority object to its perceived message. The desire to avoid an unpleasant or uncomfortable conversation, whether about religion or drugs or abortion or the Darwinists-Creationists debate, is not enough to warrant the suppression of free speech.

Our schools have an important role to play in promoting civility and respect for the law. But that lesson is undermined when school officials themselves ignore the Constitution. As Justice Louis D. Brandeis observed many years ago, the government teaches by example. And as the court noted in its historic Tinker ruling, students do not “shed their constitutional rights to freedom of speech or expression at the ’schoolhouse gate.”’ In that important decision, the court conceived of public schools as a marketplace of ideas. So long as those ideas are not disruptive, they are generally permissible.

In the current case, while the school may have disagreed with Frederick’s message, it was not disruptive to the school or its mission. Anyone who was ever a high school student knows that the school cannot compel respect for the law through censorship.

If you think this is just an academic dispute, think again. Some of the most profound issues of our day have their roots in student-led communications. Imagine if schools had been allowed to decide what speech was permissible during the civil rights era. Surely we all agree that students expressing support for their peers engaging in civil disobedience against school segregation policies were protected by the First Amendment. Today, we make the same argument for students who voice support or opposition to the teaching of evolution, for example. Certainly they are entitled to make their opinions known at school, so long as they are not disruptive.

The First Amendment is central to the American spirit. It is part of what makes us who we are as a people. From time to time, it is put to the test — and sparks unexpected alliances. Time and again, the First Amendment has triumphed over those who would seek to limit it, and we trust it will yet again.

Anthony Romero is executive director of the ACLU and Terry Pell is president of the Center for Individual Rights.