The Yale Law Journal


The "Bong" Show: Viewing Frederick's Publicity Stunt Through Kuhlmeier's Lens

09 Mar 2007

Next week, the U.S. Supreme Court will hear argument in Morse v. Frederick. At issue is whether a public high school principal violated a student’s First Amendment rights by suspending him for displaying a banner reading “BONG HiTS 4 JESUS” at an outdoor school rally for the 2002 Winter Olympics torch relay. The school petitioners, represented pro bono by Kenneth Starr, have urged the Court to give educators wide latitude to proscribe drug-themed speech so they can “foster and encourage a drug-free student lifestyle.”Such broad authority would likely chill vital discourse within the school community. This Commentary suggests that the Court could endorse the power to punish students who turn school events into their personal public soapboxes without also letting schools suppress certain messages regardless of context. The Court could decide Frederick on narrower grounds, less threatening to expressive freedoms, by applying Hazelwood School District v. Kuhlmeier—the Court’s only decision on censorship of student speech in school-sponsored activities that might reach audiences outside the school.

Five years ago in Juneau, Alaska, then-senior Joseph Frederick hatched a plan to get on television. The Olympic torch, on its way to Salt Lake City, was going to pass in front of his high school during classes. The school board arranged for hundreds of students to watch from either side of the street under faculty supervision as the pep band played and cheerleaders stood ready to greet the four student torchbearers. Frederick and his friends picked a spot in the crowd easily visible to news crews filming the relay. As the torch and cameras approached, they unfurled their banner.

Principal Deborah Morse immediately suspended Frederick for violating the school’s prohibition on displaying statements advocating drug use. Frederick sued her and the school board in federal district court, which ruled that Bethel School District No. 403 v. Fraser justified his punishment because his banner offended the school’s “basic educational mission” of promoting healthy lifestyles. The Ninth Circuit reversed, holding that the banner was nondisruptive expression protected under Tinker v. Des Moines Independent Community School District and that Frederick’s rights were so clearly established that Principal Morse did not merit qualified immunity.

The grant of certiorari likely surprised those who saw Frederick as a simple case of political expression that merely required rote application of Tinker. But in fact, the Court re-listed Frederick four times before deciding to hear it, possibly because the Justices were considering summary reversal of the qualified immunity ruling before ultimately voting to review the merits question as well. Legal observers now expect the Court to “clarify” the relationship between Tinker, which protected three students’ right to wear antiwar armbands to school, and Fraser, which upheld a student’s suspension for delivering a “plainly offensive” sexually suggestive speech at a student government assembly.

Tinker, decided in 1969 and authored by Justice Fortas, provided an outlet for peaceful student dissent by holding that schools may only restrict “personal intercommunication among the students” if such discourse threatens to disrupt the school’s work or to invade others’ rights. Fraser later limited Tinker’s scope by broadly construing the “basic educational mission” to include promoting civil discourse by “teaching students the boundaries of socially appropriate behavior.” Resurrecting Justice Black’s vigorous Tinker dissent, Fraser deferred to a school’s conclusion that “vulgar speech and lewd conduct [are] wholly inconsistent with the ‘fundamental values’ of public school education.”

The petitioners in Frederick, Principal Morse and the Juneau School Board, argue that the “special characteristics” of public schools necessarily constrain students’ constitutional rights. They ask the Court to expand Fraser’s concept of the “educational mission” to include the Juneau school district’s promotion of a drug-free lifestyle. The petitioners also justify Frederick’s punishment on the theory that his banner undercut their efforts to comply with their federally funded mandate to deliver a consistent anti-drug message. This argument may resonate with those on the Court—including Justices Breyer and Kennedy—who joined two recent Fourth Amendment opinions upholding suspicionless drug testing policies for students participating in extracurricular activities. Those decisions similarly declared that “‘special needs’ inhere in the public school context” because educators have a unique “custodial and tutelary responsibility for children.” In the more recent of the two cases, Justice Breyer also concurred separately to emphasize the “serious national problem” of student drug abuse. Citing Fraser’s proposition that schools must prepare youth for citizenship, he suggested that the policy of random urinalysis fell squarely within the school’s in loco parentis duty to protect students by minimizing the appeal of drug culture. Given that Justice Breyer has long been considered a First Amendment pragmatist, his emphatic anti-drug orientation suggests he may be a pivotal voice in the Court’s disposition of Frederick.

However, letting schools restrict expression that conflicts with specific governmental policies could swallow Tinker’s protections for intra-school dissent. Under the guise of enforcing protective agendas, administrators might feel free to punish students whose speech counters their own political inclinations. As if to prove the point, the Frederick petitioners have implied that anti-drug policies should validate censorship of political messages like the T-shirt criticizing President Bush as a former addict that was the subject of a recent Second Circuit decision. Permitting broader content regulation would likely embolden schools’ promulgation and defense of speech codes, chilling expression on both sides of the ideological divide. The Sixth Circuit has already upheld a school’s ban on Marilyn Manson T-shirts, which the principal justified partly on one image’s anti-religious content, while another recent Ninth Circuit decision upheld a student’s suspension for wearing a shirt bearing a religiously motivated anti-gay message. If Frederick turns Fraser’s solicitude for civility norms into a general license to punish certain ideas, that could leave students too afraid to exercise the “hazardous freedom” of open discourse that is so essential to their education.

The Court can avoid this treacherous path while still letting schools discipline students in Frederick’s specific situation under a different theory altogether—a theory derived from Hazelwood School District v. Kuhlmeier. In Kuhlmeier, decided two years after Fraser, the Court rejected three students’ challenge to their principal’s censorship of the school newspaper. The Court found that Tinker’s nondisruption test was inappropriate for the narrower context of a school-sponsored “expressive activit[y]” that “students, parents, and members of the public” might perceive as bearing the school’s “imprimatur.” Instead, the Court held that a school’s refusal “to lend its name and resources to the dissemination of student expression”—such as speech advocating drug use—need simply be “reasonably related to legitimate pedagogical concerns.”

The Court could interpret Frederick’s banner as speech in a publicly directed expressive activity of the kind that only Kuhlmeier has contemplated. Unlike the purely intra-school discourse in Tinker or Fraser, expressive activities such as plays and concerts are forums in which student speech is often managed for dissemination beyond the school. When schools sponsor such activities for the education and enjoyment of student participants and public audiences alike, the schools function not just as inwardly focused educational instruments but also as civic institutions engaging the citizens who support them. The Frederick petitioners had concluded that the torch relay’s educational and community value warranted giving students an opportunity to publicly celebrate their pride in their torch-bearing classmates. Like plays and concerts, the rally could be viewed as an opportunity for the school, through its students, to express its commitment to the wider community. This civic mission is distinct from the educational mission of fostering deliberation solely within the school to encourage free-thinking or to instill social values. Kuhlmeier’s unique concern for the perception of a school’s imprimatur by those outside the school community hinted at the value of this separate institutional persona.

Kuhlmeier also distinguished its analysis of “school-sponsored . . . vehicle[s] of student expression” from Tinker and Fraser’s discussions of speech “that happens to occur” at school. Frederick’s reason for picking the school’s rally as his venue—namely, his desire to be on television—shows that his speech did not merely “happen[] to occur” at the rally, and that it was not intended to be part of the “personal intercommunication among students” that the Tinker Court sought to protect. While Tinker praised the students for silently wearing their armbands in school “to make their views known, and, by their example, to influence others to adopt them,” Frederick was not trying to sway his classmates’ opinions about anything, whether marijuana, the Messiah, or the latter’s preference for the former. Rather, he only wanted “to attract television cameras.” Although he could have stood anywhere along the main avenue’s half-mile stretch, the school’s rally was the most thematically logical backdrop for the news spotlight on the student torchbearers. Frederick specifically chose to express himself at the rally so that he could appropriate its publicity and steal the spotlight for himself.

When the Ninth Circuit concluded that Kuhlmeier was inapplicable, it focused too narrowly on the example of a school newspaper and whether Frederick used school resources to produce his banner. This analysis ignored Kuhlmeier’s express concern for the use of school resources to disseminate speech. In live school-sponsored venues, bold students can deviate from messages they have been given the opportunity to express, and yet the school will have disseminated their speech despite contributing no physical resources to the act of expression. A production-oriented sponsorship analysis would thus have left Principal Morse helpless if the pep band, using personally owned instruments, had decided to play Bob Dylan’s “Rainy Day Women #12 & 35” while leading the crowd in a singalong of “Everybody must get stoned . . . .

Instead of asking whether school resources aided production of speech, the Court should examine whether a student reached his chosen audience by participating in the school’s expressive activity. Under such an inquiry, a live event’s publicity and audience become dissemination-promoting resources. In Frederick, the school’s imprimatur on the rally enabled students to gather outside during class for a civic celebratory purpose. By giving students’ sentiments a public airing, the school generated publicity by creating a media-friendly backdrop for the torch relay. Without the school’s permission, students would not have been allowed outside, and Frederick may not have received his desired television audience even if he had cut class in order to stand all alone in front of the school. The rally could therefore be seen as facilitating the public dissemination of Frederick’s message to the passing cameras.

By viewing Frederick’s publicity stunt through Kuhlmeier’s lens, the Court could endorse the school’s decision to discipline Frederick while narrowly defining the context in which educators may regulate drug-themed speech. Although this would be a defeat for Frederick individually, such a ruling would not be the setback for First Amendment protections that an expansion of Fraser might. At the very least, it would be unfortunate if the Court broadly reshapes the contours of intra-school discourse with an idiosyncratic case in which the student was not trying to speak to anyone at school.

Murad Hussain is a third-year student at Yale Law School.

Preferred Citation: Murad Hussain, The “Bong” Show: Viewing Frederick’s Publicity Stunt Through Kuhlmeier’s Lens, 116 Yale L.J. Pocket Part 292 (2007),