Morse v. Frederick and what it means....the decision itself.

(Bench Opinion) OCTOBER TERM, 2006 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MORSE ET AL. v. FREDERICK
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 06–278. Argued March 19, 2007—Decided June 25, 2007
At a school-sanctioned and school-supervised event, petitioner Morse,
the high school principal, saw students unfurl a banner stating
“BONG HiTS 4 JESUS,” which she regarded as promoting illegal
drug use. Consistent with established school policy prohibiting such
messages at school events, Morse directed the students to take down
the banner. When one of the students who had brought the banner to
the event—respondent Frederick—refused, Morse confiscated the
banner and later suspended him. The school superintendent upheld
the suspension, explaining, inter alia, that Frederick was disciplined
because his banner appeared to advocate illegal drug use in violation
of school policy. Petitioner school board also upheld the suspension.
Frederick filed suit under 42 U. S. C. §1983, alleging that the school
board and Morse had violated his First Amendment rights. The District
Court granted petitioners summary judgment, ruling that they
were entitled to qualified immunity and that they had not infringed
Frederick’s speech rights. The Ninth Circuit reversed. Accepting
that Frederick acted during a school-authorized activity and that the
banner expressed a positive sentiment about marijuana use, the
court nonetheless found a First Amendment violation because the
school punished Frederick without demonstrating that his speech
threatened substantial disruption. It also concluded that Morse was
not entitled to qualified immunity because Frederick’s right to display
the banner was so clearly established that a reasonable principal
in Morse’s position would have understood that her actions were
unconstitutional.
Held: Because schools may take steps to safeguard those entrusted to
their care from speech that can reasonably be regarded as encouraging
illegal drug use, the school officials in this case did not violate the
2 MORSE v. FREDERICK
Syllabus
First Amendment by confiscating the pro-drug banner and suspending
Frederick. Pp. 5–15.
(a) Frederick’s argument that this is not a school speech case is rejected.
The event in question occurred during normal school hours
and was sanctioned by Morse as an approved social event at which
the district’s student-conduct rules expressly applied. Teachers and
administrators were among the students and were charged with supervising
them. Frederick stood among other students across the
street from the school and directed his banner toward the school,
making it plainly visible to most students. Under these circumstances,
Frederick cannot claim he was not at school. Pp. 5–6.
(b) The Court agrees with Morse that those who viewed the banner
would interpret it as advocating or promoting illegal drug use, in violation
of school policy. At least two interpretations of the banner’s
words—that they constitute an imperative encouraging viewers to
smoke marijuana or, alternatively, that they celebrate drug use—
demonstrate that the sign promoted such use. This pro-drug interpretation
gains further plausibility from the paucity of alternative
meanings the banner might bear. Pp. 6–8.
(c) A principal may, consistent with the First Amendment, restrict
student speech at a school event, when that speech is reasonably
viewed as promoting illegal drug use. In Tinker v. Des Moines Inde-
pendent Community School Dist., 393 U. S. 503, the Court declared,
in holding that a policy prohibiting high school students from wearing
antiwar armbands violated the First Amendment, id., at 504,
that student expression may not be suppressed unless school officials
reasonably conclude that it will “materially and substantially disrupt
the work and discipline of the school,” id., at 513. The Court in Be-
thel School Dist. No. 403 v. Fraser, 478 U. S. 675, however, upheld
the suspension of a student who delivered a high school assembly
speech employing “an elaborate, graphic, and explicit sexual metaphor,
” id., at 678. Analyzing the case under Tinker, the lower courts
had found no disruption, and therefore no basis for discipline. 478
U. S., at 679–680. This Court reversed, holding that the school was
“within its permissible authority in imposing sanctions . . . in response
to [the student’s] offensively lewd and indecent speech.” Id.,
at 685. Two basic principles may be distilled from Fraser. First, it
demonstrates that “the constitutional rights of students in public
school are not automatically coextensive with the rights of adults in
other settings.” Id., at 682. Had Fraser delivered the same speech in
a public forum outside the school context, he would have been protected.
See, id., at 682–683. In school, however, his First Amendment
rights were circumscribed “in light of the special characteristics
of the school environment.” Tinker, supra, at 506. Second, Fraser esCite
as: 551 U. S. ____ (2007) 3
Syllabus
tablished that Tinker’s mode of analysis is not absolute, since the
Fraser Court did not conduct the “substantial disruption” analysis.
Subsequently, the Court has held in the Fourth Amendment context
that “while children assuredly do not ‘shed their constitutional rights
. . . at the schoolhouse gate,’ . . . the nature of those rights is what is
appropriate for children in school,” Vernonia School Dist. 47J v. Ac-
ton, 515 U. S. 646, 655–656, and has recognized that deterring drug
use by schoolchildren is an “important—indeed, perhaps compelling”
interest, id., at 661. Drug abuse by the Nation’s youth is a serious
problem. For example, Congress has declared that part of a school’s
job is educating students about the dangers of drug abuse, see, e.g.,
the Safe and Drug-Free Schools and Communities Act of 1994, and
petitioners and many other schools have adopted policies aimed at
implementing this message. Student speech celebrating illegal drug
use at a school event, in the presence of school administrators and
teachers, poses a particular challenge for school officials working to
protect those entrusted to their care. The “special characteristics of
the school environment,” Tinker, 393 U. S., at 506, and the governmental
interest in stopping student drug abuse allow schools to restrict
student expression that they reasonably regard as promoting
such abuse. Id., at 508, 509, distinguished. Pp. 8–15.
439 F. 3d 1114, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring
opinion. ALITO, J., filed a concurring opinion, in which KENNEDY,
J., joined. BREYER, J., filed an opinion concurring in the judgment in
part and dissenting in part. STEVENS, J., filed a dissenting opinion, in
which SOUTER and GINSBURG, JJ., joined.
Cite as: 551 U. S. ____ (2007) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–278
_________________
DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH
FREDERICK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2007]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
At a school-sanctioned and school-supervised event, a
high school principal saw some of her students unfurl a
large banner conveying a message she reasonably regarded
as promoting illegal drug use. Consistent with
established school policy prohibiting such messages at
school events, the principal directed the students to take
down the banner. One student—among those who had
brought the banner to the event—refused to do so. The
principal confiscated the banner and later suspended the
student. The Ninth Circuit held that the principal’s actions
violated the First Amendment, and that the student
could sue the principal for damages.
Our cases make clear that students do not “shed their
constitutional rights to freedom of speech or expression at
the schoolhouse gate.” Tinker v. Des Moines Independent
Community School Dist., 393 U. S. 503, 506 (1969). At the
same time, we have held that “the constitutional rights of
students in public school are not automatically coextensive
with the rights of adults in other settings,” Bethel School
2 MORSE v. FREDERICK
Opinion of the Court
Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986), and that
the rights of students “must be ‘applied in light of the
special characteristics of the school environment.’ ”
Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 266
(1988) (quoting Tinker, supra, at 506). Consistent with
these principles, we hold that schools may take steps to
safeguard those entrusted to their care from speech that
can reasonably be regarded as encouraging illegal drug
use. We conclude that the school officials in this case did
not violate the First Amendment by confiscating the prodrug
banner and suspending the student responsible for it.
I
On January 24, 2002, the Olympic Torch Relay passed
through Juneau, Alaska, on its way to the winter games in
Salt Lake City, Utah. The torchbearers were to proceed
along a street in front of Juneau-Douglas High School
(JDHS) while school was in session. Petitioner Deborah
Morse, the school principal, decided to permit staff and
students to participate in the Torch Relay as an approved
social event or class trip. App. 22–23. Students were
allowed to leave class to observe the relay from either side
of the street. Teachers and administrative officials monitored
the students’ actions.
Respondent Joseph Frederick, a JDHS senior, was late
to school that day. When he arrived, he joined his friends
(all but one of whom were JDHS students) across the
street from the school to watch the event. Not all the
students waited patiently. Some became rambunctious,
throwing plastic cola bottles and snowballs and scuffling
with their classmates. As the torchbearers and camera
crews passed by, Frederick and his friends unfurled a 14-
foot banner bearing the phrase: “BONG HiTS 4 JESUS.”
App. to Pet. for Cert. 70a. The large banner was easily
readable by the students on the other side of the street.
Principal Morse immediately crossed the street and
Cite as: 551 U. S. ____ (2007) 3
Opinion of the Court
demanded that the banner be taken down. Everyone but
Frederick complied. Morse confiscated the banner and
told Frederick to report to her office, where she suspended
him for 10 days. Morse later explained that she told
Frederick to take the banner down because she thought it
encouraged illegal drug use, in violation of established
school policy. Juneau School Board Policy No. 5520 states:
“The Board specifically prohibits any assembly or public
expression that . . . advocates the use of substances that
are illegal to minors . . . .” Id., at 53a. In addition, Juneau
School Board Policy No. 5850 subjects “[p]upils who participate
in approved social events and class trips” to the
same student conduct rules that apply during the regular
school program. Id., at 58a.
Frederick administratively appealed his suspension, but
the Juneau School District Superintendent upheld it,
limiting it to time served (8 days). In a memorandum
setting forth his reasons, the superintendent determined
that Frederick had displayed his banner “in the midst of
his fellow students, during school hours, at a schoolsanctioned
activity.” Id., at 63a. He further explained
that Frederick “was not disciplined because the principal
of the school ‘disagreed’ with his message, but because his
speech appeared to advocate the use of illegal drugs.” Id.,
at 61a.
The superintendent continued:
“The common-sense understanding of the phrase ‘bong
hits’ is that it is a reference to a means of smoking
marijuana. Given [Frederick’s] inability or unwillingness
to express any other credible meaning for the
phrase, I can only agree with the principal and countless
others who saw the banner as advocating the use
of illegal drugs. [Frederick’s] speech was not political.
He was not advocating the legalization of marijuana
or promoting a religious belief. He was displaying a
4 MORSE v. FREDERICK
Opinion of the Court
fairly silly message promoting illegal drug usage in
the midst of a school activity, for the benefit of television
cameras covering the Torch Relay. [Frederick’s]
speech was potentially disruptive to the event and
clearly disruptive of and inconsistent with the school’s
educational mission to educate students about the
dangers of illegal drugs and to discourage their use.”
Id., at 61a–62a.
Relying on our decision in Fraser, supra, the superintendent
concluded that the principal’s actions were permissible
because Frederick’s banner was “speech or action that
intrudes upon the work of the schools.” App. to Pet. for
Cert. 62a (internal quotation marks omitted). The Juneau
School District Board of Education upheld the suspension.
Frederick then filed suit under 42 U. S. C. §1983, alleging
that the school board and Morse had violated his First
Amendment rights. He sought declaratory and injunctive
relief, unspecified compensatory damages, punitive damages,
and attorney’s fees. The District Court granted
summary judgment for the school board and Morse, ruling
that they were entitled to qualified immunity and that
they had not infringed Frederick’s First Amendment
rights. The court found that Morse reasonably interpreted
the banner as promoting illegal drug use—a message that
“directly contravened the Board’s policies relating to drug
abuse prevention.” App. to Pet. for Cert. 36a–38a. Under
the circumstances, the court held that “Morse had the
authority, if not the obligation, to stop such messages at a
school-sanctioned activity.” Id., at 37a.
The Ninth Circuit reversed. Deciding that Frederick
acted during a “school-authorized activit[y],” and “proceed[
ing] on the basis that the banner expressed a positive
sentiment about marijuana use,” the court nonetheless
found a violation of Frederick’s First Amendment rights
because the school punished Frederick without demonCite
as: 551 U. S. ____ (2007) 5
Opinion of the Court
strating that his speech gave rise to a “risk of substantial
disruption.” 439 F. 3d 1114, 1118, 1121–1123 (2006). The
court further concluded that Frederick’s right to display
his banner was so “clearly established” that a reasonable
principal in Morse’s position would have understood that
her actions were unconstitutional, and that Morse was
therefore not entitled to qualified immunity. Id., at 1123–
1125.
We granted certiorari on two questions: whether Frederick
had a First Amendment right to wield his banner, and,
if so, whether that right was so clearly established that
the principal may be held liable for damages. 549 U. S.
___ (2006). We resolve the first question against Frederick,
and therefore have no occasion to reach the second.1
II
At the outset, we reject Frederick’s argument that this
is not a school speech case—as has every other authority
to address the question. See App. 22–23 (Principal
Morse); App. to Pet. for Cert. 63a (superintendent); id., at
69a (school board); id., at 34a–35a (District Court); 439
F. 3d, at 1117 (Ninth Circuit). The event occurred during
——————
1 JUSTICE BREYER would rest decision on qualified immunity without
reaching the underlying First Amendment question. The problem with
this approach is the rather significant one that it is inadequate to
decide the case before us. Qualified immunity shields public officials
from money damages only. See Wood v. Strickland, 420 U. S. 308, 314,
n. 6 (1975). In this case, Frederick asked not just for damages, but also
for declaratory and injunctive relief. App. 13. JUSTICE BREYER’s
proposed decision on qualified immunity grounds would dispose of the
damages claims, but Frederick’s other claims would remain unaddressed.
To get around that problem, JUSTICE BREYER hypothesizes
that Frederick’s suspension—the target of his request for injunctive
relief—“may well be justified on non-speech-related grounds.” See post,
at 9. That hypothesis was never considered by the courts below, never
raised by any of the parties, and is belied by the record, which nowhere
suggests that the suspension would have been justified solely on nonspeech-
related grounds.
6 MORSE v. FREDERICK
Opinion of the Court
normal school hours. It was sanctioned by Principal
Morse “as an approved social event or class trip,” App. 22–
23, and the school district’s rules expressly provide that
pupils in “approved social events and class trips are subject
to district rules for student conduct.” App. to Pet. for
Cert. 58a. Teachers and administrators were interspersed
among the students and charged with supervising them.
The high school band and cheerleaders performed. Frederick,
standing among other JDHS students across the
street from the school, directed his banner toward the
school, making it plainly visible to most students. Under
these circumstances, we agree with the superintendent
that Frederick cannot “stand in the midst of his fellow
students, during school hours, at a school-sanctioned
activity and claim he is not at school.” Id., at 63a. There
is some uncertainty at the outer boundaries as to when
courts should apply school-speech precedents, see Porter v.
Ascension Parish School Bd., 393 F. 3d 608, 615, n. 22
(CA5 2004), but not on these facts.
III
The message on Frederick’s banner is cryptic. It is no
doubt offensive to some, perhaps amusing to others. To
still others, it probably means nothing at all. Frederick
himself claimed “that the words were just nonsense meant
to attract television cameras.” 439 F. 3d, at 1117–1118.
But Principal Morse thought the banner would be interpreted
by those viewing it as promoting illegal drug use,
and that interpretation is plainly a reasonable one.
As Morse later explained in a declaration, when she saw
the sign, she thought that “the reference to a ‘bong hit’
would be widely understood by high school students and
others as referring to smoking marijuana.” App. 24. She
further believed that “display of the banner would be
construed by students, District personnel, parents and
others witnessing the display of the banner, as advocating
Cite as: 551 U. S. ____ (2007) 7
Opinion of the Court
or promoting illegal drug use”—in violation of school
policy. Id., at 25; see ibid. (“I told Frederick and the other
members of his group to put the banner down because I
felt that it violated the [school] policy against displaying
. . . material that advertises or promotes use of illegal
drugs”).
We agree with Morse. At least two interpretations of
the words on the banner demonstrate that the sign advocated
the use of illegal drugs. First, the phrase could be
interpreted as an imperative: “[Take] bong hits . . .”—a
message equivalent, as Morse explained in her declaration,
to “smoke marijuana” or “use an illegal drug.” Alternatively,
the phrase could be viewed as celebrating drug
use—“bong hits [are a good thing],” or “[we take] bong
hits”—and we discern no meaningful distinction between
celebrating illegal drug use in the midst of fellow students
and outright advocacy or promotion. See Guiles v.
Marineau, 461 F. 3d 320, 328 (CA2 2006) (discussing the
present case and describing the sign as “a clearly pro-drug
banner”).
The pro-drug interpretation of the banner gains further
plausibility given the paucity of alternative meanings the
banner might bear. The best Frederick can come up with
is that the banner is “meaningless and funny.” 439 F. 3d,
at 1116. The dissent similarly refers to the sign’s message
as “curious,” post, at 1, “ambiguous,” ibid., “nonsense,”
post, at 2, “ridiculous,” post, at 6, “obscure,” post, at 7,
“silly,” post, at 12, “quixotic,” post, at 13, and “stupid,”
ibid. Gibberish is surely a possible interpretation of the
words on the banner, but it is not the only one, and dismissing
the banner as meaningless ignores its undeniable
reference to illegal drugs.
The dissent mentions Frederick’s “credible and uncontradicted
explanation for the message—he just wanted to
get on television.” Post, at 12. But that is a description of
Frederick’s motive for displaying the banner; it is not an
8 MORSE v. FREDERICK
Opinion of the Court
interpretation of what the banner says. The way Frederick
was going to fulfill his ambition of appearing on television
was by unfurling a pro-drug banner at a school event,
in the presence of teachers and fellow students.
Elsewhere in its opinion, the dissent emphasizes the
importance of political speech and the need to foster “national
debate about a serious issue,” post, at 16, as if to
suggest that the banner is political speech. But not even
Frederick argues that the banner conveys any sort of
political or religious message. Contrary to the dissent’s
suggestion, see post, at 14–16, this is plainly not a case
about political debate over the criminalization of drug use
or possession.
IV
The question thus becomes whether a principal may,
consistent with the First Amendment, restrict student
speech at a school event, when that speech is reasonably
viewed as promoting illegal drug use. We hold that she
may.
In Tinker, this Court made clear that “First Amendment
rights, applied in light of the special characteristics of the
school environment, are available to teachers and students.
” 393 U. S., at 506. Tinker involved a group of high
school students who decided to wear black armbands to
protest the Vietnam War. School officials learned of the
plan and then adopted a policy prohibiting students from
wearing armbands. When several students nonetheless
wore armbands to school, they were suspended. Id., at
504. The students sued, claiming that their First
Amendment rights had been violated, and this Court
agreed.
Tinker held that student expression may not be suppressed
unless school officials reasonably conclude that it
will “materially and substantially disrupt the work and
discipline of the school.” Id., at 513. The essential facts of
Cite as: 551 U. S. ____ (2007) 9
Opinion of the Court
Tinker are quite stark, implicating concerns at the heart of
the First Amendment. The students sought to engage in
political speech, using the armbands to express their
“disapproval of the Vietnam hostilities and their advocacy
of a truce, to make their views known, and, by their example,
to influence others to adopt them.” Id., at 514. Political
speech, of course, is “at the core of what the First
Amendment is designed to protect.” Virginia v. Black, 538
U. S. 343, 365 (2003). The only interest the Court discerned
underlying the school’s actions was the “mere
desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint,” or “an urgent
wish to avoid the controversy which might result from the
expression.” Tinker, 393 U. S., at 509, 510. That interest
was not enough to justify banning “a silent, passive expression
of opinion, unaccompanied by any disorder or
disturbance.” Id., at 508.
This Court’s next student speech case was Fraser, 478
U. S. 675. Matthew Fraser was suspended for delivering a
speech before a high school assembly in which he employed
what this Court called “an elaborate, graphic, and
explicit sexual metaphor.” Id., at 678. Analyzing the case
under Tinker, the District Court and Court of Appeals
found no disruption, and therefore no basis for disciplining
Fraser. 478 U. S., at 679–680. This Court reversed, holding
that the “School District acted entirely within its
permissible authority in imposing sanctions upon Fraser
in response to his offensively lewd and indecent speech.”
Id., at 685.
The mode of analysis employed in Fraser is not entirely
clear. The Court was plainly attuned to the content of
Fraser’s speech, citing the “marked distinction between
the political ‘message’ of the armbands in Tinker and the
sexual content of [Fraser’s] speech.” Id., at 680. But the
Court also reasoned that school boards have the authority
to determine “what manner of speech in the classroom or
10 MORSE v. FREDERICK
Opinion of the Court
in school assembly is inappropriate.” Id., at 683. Cf. id.,
at 689 (Brennan, J., concurring in judgment) (“In the
present case, school officials sought only to ensure that a
high school assembly proceed in an orderly manner.
There is no suggestion that school officials attempted to
regulate [Fraser’s] speech because they disagreed with the
views he sought to express”).
We need not resolve this debate to decide this case. For
present purposes, it is enough to distill from Fraser two
basic principles. First, Fraser’s holding demonstrates that
“the constitutional rights of students in public school are
not automatically coextensive with the rights of adults in
other settings.” Id., at 682. Had Fraser delivered the
same speech in a public forum outside the school context,
it would have been protected. See Cohen v. California,
403 U. S. 15 (1971); Fraser, supra, at 682–683. In school,
however, Fraser’s First Amendment rights were circumscribed
“in light of the special characteristics of the school
environment.” Tinker, supra, at 506. Second, Fraser
established that the mode of analysis set forth in Tinker is
not absolute. Whatever approach Fraser employed, it
certainly did not conduct the “substantial disruption”
analysis prescribed by Tinker, supra, at 514. See Kuhl-
meier, 484 U. S., at 271, n. 4 (disagreeing with the proposition
that there is “no difference between the First
Amendment analysis applied in Tinker and that applied in
Fraser,” and noting that the holding in Fraser was not
based on any showing of substantial disruption).
Our most recent student speech case, Kuhlmeier, concerned
“expressive activities that students, parents, and
members of the public might reasonably perceive to bear
the imprimatur of the school.” 484 U. S., at 271. Staff
members of a high school newspaper sued their school
when it chose not to publish two of their articles. The
Court of Appeals analyzed the case under Tinker, ruling in
favor of the students because it found no evidence of mateCite
as: 551 U. S. ____ (2007) 11
Opinion of the Court
rial disruption to classwork or school discipline. 795 F. 2d
1368, 1375 (CA8 1986). This Court reversed, holding that
“educators do not offend the First Amendment by exercising
editorial control over the style and content of student
speech in school-sponsored expressive activities so long as
their actions are reasonably related to legitimate pedagogical
concerns.” Kuhlmeier, supra, at 273.
Kuhlmeier does not control this case because no one
would reasonably believe that Frederick’s banner bore the
school’s imprimatur. The case is nevertheless instructive
because it confirms both principles cited above. Kuhlmeier
acknowledged that schools may regulate some speech
“even though the government could not censor similar
speech outside the school.” Id., at 266. And, like Fraser, it
confirms that the rule of Tinker is not the only basis for
restricting student speech.2
Drawing on the principles applied in our student speech
cases, we have held in the Fourth Amendment context
that “while children assuredly do not ‘shed their constitutional
rights . . . at the schoolhouse gate,’ . . . the nature of
those rights is what is appropriate for children in school.”
Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655–656
(1995) (quoting Tinker, supra, at 506). In particular, “the
school setting requires some easing of the restrictions to
which searches by public authorities are ordinarily subject.
” New Jersey v. T. L. O., 469 U. S. 325, 340 (1985).
See Vernonia, supra, at 656 (“Fourth Amendment rights,
——————
2 The dissent’s effort to find inconsistency between our approach here
and the opinion in Federal Election Commission v. Wisconsin Right to
Life, Inc., 551 U. S. ___ (2007), see post, at 12 (opinion of STEVENS, J.),
overlooks what was made clear in Tinker, Fraser, and Kuhlmeier:
student First Amendment rights are “applied in light of the special
characteristics of the school environment.” Tinker, 393 U. S., at 506.
See Fraser, 478 U. S., at 682; Kuhlmeier, 484 U. S., at 266. And, as
discussed above, supra, at 8, there is no serious argument that Frederick
’s banner is political speech of the sort at issue in Wisconsin Right to
Life.
12 MORSE v. FREDERICK
Opinion of the Court
no less than First and Fourteenth Amendment rights, are
different in public schools than elsewhere . . .”); Board of
Ed. of Independent School Dist. No. 92 of Pottawatomie
Cty. v. Earls, 536 U. S. 822, 829-830 (2002) (“ ‘special
needs’ inhere in the public school context”; “[w]hile schoolchildren
do not shed their constitutional rights when they
enter the schoolhouse, Fourth Amendment rights . . . are
different in public schools than elsewhere; the ‘reasonableness
’ inquiry cannot disregard the schools’ custodial
and tutelary responsibility for children” (quoting Verno-
nia, 515 U. S., at 656; citation and some internal quotation
marks omitted).
Even more to the point, these cases also recognize that
deterring drug use by schoolchildren is an “important—
indeed, perhaps compelling” interest. Id., at 661. Drug
abuse can cause severe and permanent damage to the
health and well-being of young people:
“School years are the time when the physical, psychological,
and addictive effects of drugs are most severe.
Maturing nervous systems are more critically impaired
by intoxicants than mature ones are; childhood
losses in learning are lifelong and profound; children
grow chemically dependent more quickly than adults,
and their record of recovery is depressingly poor. And
of course the effects of a drug-infested school are visited
not just upon the users, but upon the entire student
body and faculty, as the educational process is
disrupted.” Id., at 661–662 (citations and internal
quotation marks omitted).
Just five years ago, we wrote: “The drug abuse problem
among our Nation’s youth has hardly abated since Verno-
nia was decided in 1995. In fact, evidence suggests that it
has only grown worse.” Earls, supra, at 834, and n. 5.
The problem remains serious today. See generally 1
National Institute on Drug Abuse, National Institutes of
Cite as: 551 U. S. ____ (2007) 13
Opinion of the Court
Health, Monitoring the Future: National Survey Results
on Drug Use, 1975–2005, Secondary School Students
(2006). About half of American 12th graders have used an
illicit drug, as have more than a third of 10th graders and
about one-fifth of 8th graders. Id., at 99. Nearly one in
four 12th graders has used an illicit drug in the past
month. Id., at 101. Some 25% of high schoolers say that
they have been offered, sold, or given an illegal drug on
school property within the past year. Dept. of Health and
Human Services, Centers for Disease Control and Prevention,
Youth Risk Behavior Surveillance—United States,
2005, 55 Morbidity and Mortality Weekly Report, Surveillance
Summaries, No. SS–5, p. 19 (June 9, 2006).
Congress has declared that part of a school’s job is educating
students about the dangers of illegal drug use. It
has provided billions of dollars to support state and local
drug-prevention programs, Brief for United States as
Amicus Curiae 1, and required that schools receiving
federal funds under the Safe and Drug-Free Schools and
Communities Act of 1994 certify that their drug prevention
programs “convey a clear and consistent message that
. . . the illegal use of drugs [is] wrong and harmful.” 20
U. S. C. §7114(d)(6) (2000 ed., Supp. IV).
Thousands of school boards throughout the country—
including JDHS—have adopted policies aimed at effectuating
this message. See Pet. for Cert. 17–21. Those school
boards know that peer pressure is perhaps “the single
most important factor leading schoolchildren to take
drugs,” and that students are more likely to use drugs
when the norms in school appear to tolerate such behavior.
Earls, supra, at 840 (BREYER, J., concurring). Student
speech celebrating illegal drug use at a school event,
in the presence of school administrators and teachers,
thus poses a particular challenge for school officials working
to protect those entrusted to their care from the dangers
of drug abuse.
14 MORSE v. FREDERICK
Opinion of the Court
The “special characteristics of the school environment,”
Tinker, 393 U. S., at 506, and the governmental interest in
stopping student drug abuse—reflected in the policies of
Congress and myriad school boards, including JDHS—
allow schools to restrict student expression that they
reasonably regard as promoting illegal drug use. Tinker
warned that schools may not prohibit student speech
because of “undifferentiated fear or apprehension of disturbance
” or “a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular
viewpoint.” Id., at 508, 509. The danger here is far more
serious and palpable. The particular concern to prevent
student drug abuse at issue here, embodied in established
school policy, App. 92–95; App. to Pet. for Cert. 53a, extends
well beyond an abstract desire to avoid controversy.
Petitioners urge us to adopt the broader rule that Frederick
’s speech is proscribable because it is plainly “offensive
” as that term is used in Fraser. See Reply Brief for
Petitioners 14–15. We think this stretches Fraser too far;
that case should not be read to encompass any speech that
could fit under some definition of “offensive.” After all,
much political and religious speech might be perceived as
offensive to some. The concern here is not that Frederick’s
speech was offensive, but that it was reasonably viewed as
promoting illegal drug use.
Although accusing this decision of doing “serious violence
to the First Amendment” by authorizing “viewpoint
discrimination,” post, at 2, 5 (opinion of STEVENS, J.), the
dissent concludes that “it might well be appropriate to
tolerate some targeted viewpoint discrimination in this
unique setting,” post, at 6–7. Nor do we understand the
dissent to take the position that schools are required to
tolerate student advocacy of illegal drug use at school
events, even if that advocacy falls short of inviting “imminent
” lawless action. See post, at 7 (“[I]t is possible that
our rigid imminence requirement ought to be relaxed at
Cite as: 551 U. S. ____ (2007) 15
Opinion of the Court
schools”). And even the dissent recognizes that the issues
here are close enough that the principal should not be held
liable in damages, but should instead enjoy qualified
immunity for her actions. See post, at 1. Stripped of
rhetorical flourishes, then, the debate between the dissent
and this opinion is less about constitutional first principles
than about whether Frederick’s banner constitutes promotion
of illegal drug use. We have explained our view that
it does. The dissent’s contrary view on that relatively
narrow question hardly justifies sounding the First
Amendment bugle.
* * *
School principals have a difficult job, and a vitally important
one. When Frederick suddenly and unexpectedly
unfurled his banner, Morse had to decide to act—or not
act—on the spot. It was reasonable for her to conclude
that the banner promoted illegal drug use—in violation of
established school policy—and that failing to act would
send a powerful message to the students in her charge,
including Frederick, about how serious the school was
about the dangers of illegal drug use. The First Amendment
does not require schools to tolerate at school events
student expression that contributes to those dangers.
The judgment of the United States Court of Appeals for
the Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 551 U. S. ____ (2007) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–278
_________________
DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH
FREDERICK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2007]
JUSTICE THOMAS, concurring.
The Court today decides that a public school may prohibit
speech advocating illegal drug use. I agree and
therefore join its opinion in full. I write separately to state
my view that the standard set forth in Tinker v. Des
Moines Independent Community School Dist., 393 U. S.
503 (1969), is without basis in the Constitution.
I
The First Amendment states that “Congress shall make
no law . . . abridging the freedom of speech.” As this Court
has previously observed, the First Amendment was not
originally understood to permit all sorts of speech; instead,
“[t]here are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem.
” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–
572 (1942); see also Cox v. Louisiana, 379 U. S. 536, 554
(1965). In my view, the history of public education suggests
that the First Amendment, as originally understood,
does not protect student speech in public schools. Although
colonial schools were exclusively private, public
education proliferated in the early 1800’s. By the time the
States ratified the Fourteenth Amendment, public schools
had become relatively common. W. Reese, America’s
2 MORSE v. FREDERICK
THOMAS, J., concurring
Public Schools: From the Common School to “No Child
Left Behind” 11–12 (2005) (hereinafter Reese). If students
in public schools were originally understood as having
free-speech rights, one would have expected 19th-century
public schools to have respected those rights and courts to
have enforced them.1 They did not.
A
During the colonial era, private schools and tutors offered
the only educational opportunities for children, and
teachers managed classrooms with an iron hand. R. Butts
& L. Cremin, A History of Education in American Culture
121, 123 (1953) (hereinafter Butts). Public schooling
arose, in part, as a way to educate those too poor to afford
private schools. See Kaestle & Vinovskis, From Apron
Strings to ABCs: Parents, Children, and Schooling in
Nineteenth-Century Massachusetts, 84 Am. J. Sociology
S39, S49 (Supp. 1978). Because public schools were initially
created as substitutes for private schools, when
States developed public education systems in the early
1800’s, no one doubted the government’s ability to educate
and discipline children as private schools did. Like their
private counterparts, early public schools were not places
for freewheeling debates or exploration of competing ideas.
Rather, teachers instilled “a core of common values” in
students and taught them self-control. Reese 23; A. Potter
& G. Emerson, The School and the Schoolmaster: A Manual
125 (1843) (“By its discipline it contributes, insensibly,
to generate a spirit of subordination to lawful authority, a
power of self-control, and a habit of postponing present
indulgence to a greater future good . . .”); D. Parkerson &
——————
1 Although the First Amendment did not apply to the States until at
least the ratification of the Fourteenth Amendment, most state constitutions
included free-speech guarantees during the period when public
education expanded. E.g., Cal. Const., Art. I, §9 (1849); Conn. Const.,
Art. I, §5 (1818); Ind. Const., Art. I, §9 (1816).
Cite as: 551 U. S. ____ (2007) 3
THOMAS, J., concurring
J. Parkerson, The Emergence of the Common School in the
U. S. Countryside 6 (1998) (hereinafter Parkerson) (noting
that early education activists, such as Benjamin Rush,
believed public schools “help[ed] control the innate selfishness
of the individual”).
Teachers instilled these values not only by presenting
ideas but also through strict discipline. Butts 274–275.
Schools punished students for behavior the school considered
disrespectful or wrong. Parkerson 65 (noting that
children were punished for idleness, talking, profanity,
and slovenliness). Rules of etiquette were enforced, and
courteous behavior was demanded. Reese 40. To meet
their educational objectives, schools required absolute
obedience. C. Northend, The Teacher’s Assistant or Hints
and Methods in School Discipline and Instruction 44, 52
(1865) (“I consider a school judiciously governed, where
order prevails; where the strictest sense of propriety is
manifested by the pupils towards the teacher, and towards
each other . . .” (internal quotation marks omitted)).2
In short, in the earliest public schools, teachers taught,
and students listened. Teachers commanded, and students
obeyed. Teachers did not rely solely on the power of
ideas to persuade; they relied on discipline to maintain
order.
B
Through the legal doctrine of in loco parentis, courts
upheld the right of schools to discipline students, to en-
——————
2 Even at the college level, strict obedience was required of students:
“The English model fostered absolute institutional control of students
by faculty both inside and outside the classroom. At all the early
American schools, students lived and worked under a vast array of
rules and restrictions. This one-sided relationship between the student
and the college mirrored the situation at English schools where the
emphasis on hierarchical authority stemmed from medieval Christian
theology and the unique legal privileges afforded the university corporation.
” Note, 44 Vand. L. Rev. 1135, 1140 (1991) (footnote omitted).
4 MORSE v. FREDERICK
THOMAS, J., concurring
force rules, and to maintain order.3 Rooted in the English
common law, in loco parentis originally governed the legal
rights and obligations of tutors and private schools. 1 W.
Blackstone, Commentaries on the Laws of England 441
(1765) (“[A parent] may also delegate part of his parental
authority, during his life, to the tutor or schoolmaster of
his child; who is then in loco parentis, and has such a
portion of the power of the parent committed to his charge,
viz. that of restraint and correction, as may be necessary
to answer the purposes for which he is employed”). Chancellor
James Kent noted the acceptance of the doctrine as
part of American law in the early 19th century. 2 J. Kent,
Commentaries on American Law *205, *206–*207 (“So the
power allowed by law to the parent over the person of the
child may be delegated to a tutor or instructor, the better
to accomplish the purpose of education”).
As early as 1837, state courts applied the in loco parentis
principle to public schools:
“One of the most sacred duties of parents, is to train
up and qualify their children, for becoming useful and
virtuous members of society; this duty cannot be effectually
performed without the ability to command obedience,
to control stubbornness, to quicken diligence,
and to reform bad habits . . . . The teacher is the substitute
of the parent; . . . and in the exercise of these
delegated duties, is invested with his power.” State v.
——————
3 My discussion is limited to elementary and secondary education. In
these settings, courts have applied the doctrine of in loco parentis
regardless of the student’s age. See, e.g., Stevens v. Fassett, 27 Me. 266,
281 (1847) (holding that a student over the age of 21 is “liab[le] to
punishment” on the same terms as other students if he “present[s]
himself as a pupil, [and] is received and instructed by the master”);
State v. Mizner, 45 Iowa 248, 250–252 (1876) (same); Sheehan v.
Sturges, 53 Conn. 481, 484, 2 A. 841, 843 (1885) (same). Therefore, the
fact that Frederick was 18 and not a minor under Alaska law, 439 F. 3d
1114, 1117, n. 4 (CA9 2006), is inconsequential.
Cite as: 551 U. S. ____ (2007) 5
THOMAS, J., concurring
Pendergrass, 19 N. C. 365, 365–366, (1837).
Applying in loco parentis, the judiciary was reluctant to
interfere in the routine business of school administration,
allowing schools and teachers to set and enforce rules and
to maintain order. Sheehan v. Sturges, 53 Conn. 481, 483–
484, 2 A. 841, 842 (1885). Thus, in the early years of
public schooling, schools and teachers had considerable
discretion in disciplinary matters:
“To accomplish th[e] desirable ends [of teaching selfrestraint,
obedience, and other civic virtues], the master
of a school is necessarily invested with much discretionary
power. . . . He must govern these pupils,
quicken the slothful, spur the indolent, restrain the
impetuous, and control the stubborn. He must make
rules, give commands, and punish disobedience.
What rules, what commands, and what punishments
shall be imposed, are necessarily largely within the
discretion of the master, where none are defined by
the school board.” Patterson v. Nutter, 78 Me. 509,
511, 7 A. 273, 274 (1886).4
A review of the case law shows that in loco parentis
allowed schools to regulate student speech as well. Courts
routinely preserved the rights of teachers to punish speech
that the school or teacher thought was contrary to the
interests of the school and its educational goals. For
example, the Vermont Supreme Court upheld the corporal
punishment of a student who called his teacher “Old Jack
Seaver” in front of other students. Lander v. Seaver, 32
Vt. 114, 115 (1859). The court explained its decision as
——————
4 Even courts that did not favor the broad discretion given to teachers
to impose corporal punishment recognized that the law provided it.
Cooper v. McJunkin, 4 Ind. 290, 291 (1853) (stating that “[t]he public
seem to cling to a despotism in the government of schools which has
been discarded everywhere else”).
6 MORSE v. FREDERICK
THOMAS, J., concurring
follows:
“[L]anguage used to other scholars to stir up disorder
and subordination, or to heap odium and disgrace
upon the master; writings and pictures placed so as to
suggest evil and corrupt language, images and
thoughts to the youth who must frequent the school;
all such or similar acts tend directly to impair the usefulness
of the school, the welfare of the scholars and
the authority of the master. By common consent and
by the universal custom in our New England schools,
the master has always been deemed to have the right
to punish such offences. Such power is essential to
the preservation of order, decency, decorum and good
government in schools.” Id., at 121.
Similarly, the California Court of Appeal upheld the
expulsion of a student who gave a speech before the student
body that criticized the administration for having an
unsafe building “because of the possibility of fire.” Wooster
v. Sunderland, 27 Cal. App. 51, 52, 148 P. 959, (1915).
The punishment was appropriate, the court stated, because
the speech “was intended to discredit and humiliate
the board in the eyes of the students, and tended to impair
the discipline of the school.” Id., at 55, 148 P., at 960.
Likewise, the Missouri Supreme Court explained that a
“rule which forbade the use of profane language [and]
quarrelling” “was not only reasonable, but necessary to the
orderly conduct of the school.” Deskins v. Gose, 85 Mo.
485, 487, 488 (1885). And the Indiana Supreme Court
upheld the punishment of a student who made distracting
demonstrations in class for “a breach of good deportment.”
Vanvactor v. State, 113 Ind. 276, 281, 15 N. E. 341, 343
(1888).5
——————
5 Courts also upheld punishment when children refused to speak after
being requested to do so by their teachers. See Board of Ed. v. Helston,
32 Ill. App. 300, 305–307 (1890) (upholding the suspension of a boy who
Cite as: 551 U. S. ____ (2007) 7
THOMAS, J., concurring
The doctrine of in loco parentis limited the ability of
schools to set rules and control their classrooms in almost
no way. It merely limited the imposition of excessive
physical punishment. In this area, the case law was split.
One line of cases specified that punishment was wholly
discretionary as long as the teacher did not act with legal
malice or cause permanent injury. E.g., Boyd v. State, 88
Ala. 169, 170–172, 7 So. 268, 269 (1890) (allowing liability
where the “punishment inflicted is immoderate or excessive,
and . . . it was induced by legal malice, or wickedness
of motive”). Another line allowed courts to intervene
where the corporal punishment was “clearly excessive.”
E.g., Lander, supra, at 124. Under both lines of cases,
courts struck down only punishments that were excessively
harsh; they almost never questioned the substantive
restrictions on student conduct set by teachers and
schools. E.g., Sheehan, supra, at 483–484, 2 A., at 842;
Gardner v. State, 4 Ind. 632, 635 (1853); Anderson v. State,
40 Tenn. 455, 456 (1859); Hardy v. James, 5 Ky. Op. 36
(1872).6
——————
refused to provide information about who had defaced the school
building); cf. Sewell v. Board of Ed. of Defiance Union School, 29 Ohio
St. 89, 92 (1876) (upholding the suspension of a student who failed to
complete a rhetorical exercise in the allotted time).
6 At least nominally, this Court has continued to recognize the applicability
of the in loco parentis doctrine to public schools. See Vernonia
School Dist. 47J v. Acton, 515 U. S. 646, 654, 655 (1995) (“Traditionally
at common law, and still today, unemancipated minors lack some of the
most fundamental rights of self-determination . . . . They are subject
. . . to the control of their parents or guardians. When parents place
minor children in private schools for their education, the teachers and
administrators of those schools stand in loco parentis over the children
entrusted to them” (citation omitted)); Bethel School Dist. No. 403 v.
Fraser, 478 U. S. 675, 684 (1986) (“These cases recognize the obvious
concern on the part of parents, and school authorities acting in loco
parentis, to protect children—especially in a captive audience—from
exposure to sexually explicit, indecent, or lewd speech”).
8 MORSE v. FREDERICK
THOMAS, J., concurring
II
Tinker effected a sea change in students’ speech rights,
extending them well beyond traditional bounds. The case
arose when a school punished several students for wearing
black armbands to school to protest the Vietnam War.
Tinker, 393 U. S., at 504. Determining that the punishment
infringed the students’ First Amendment rights, this
Court created a new standard for students’ freedom of
speech in public schools:
“[W]here there is no finding and no showing that engaging
in the forbidden conduct would materially and
substantially interfere with the requirements of appropriate
discipline in the operation of the school, the
prohibition cannot be sustained.” Id., at 509 (internal
quotation marks omitted).
Accordingly, unless a student’s speech would disrupt the
educational process, students had a fundamental right to
speak their minds (or wear their armbands)—even on
matters the school disagreed with or found objectionable.
Ibid. (“[The school] must be able to show that its action
was caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany
an unpopular viewpoint”).
Justice Black dissented, criticizing the Court for “subject[
ing] all the public schools in the country to the whims
and caprices of their loudest-mouthed, but maybe not their
brightest, students.” Id., at 525. He emphasized the
instructive purpose of schools: “[T]axpayers send children
to school on the premise that at their age they need to
learn, not teach.” Id., at 522. In his view, the Court’s
decision “surrender[ed] control of the American public
school system to public school students.” Id., at 526.
Of course, Tinker’s reasoning conflicted with the traditional
understanding of the judiciary’s role in relation to
public schooling, a role limited by in loco parentis. PerCite
as: 551 U. S. ____ (2007) 9
THOMAS, J., concurring
haps for that reason, the Court has since scaled back
Tinker’s standard, or rather set the standard aside on an
ad hoc basis. In Bethel School Dist. No. 403 v. Fraser, 478
U. S. 675, 677, 678 (1986), a public school suspended a
student for delivering a speech that contained “an elaborate,
graphic, and explicit sexual metaphor.” The Court of
Appeals found that the speech caused no disruption under
the Tinker standard, and this Court did not question that
holding. 478 U. S., at 679–680. The Court nonetheless
permitted the school to punish the student because of the
objectionable content of his speech. Id., at 685 (“A high
school assembly or classroom is no place for a sexually
explicit monologue directed towards an unsuspecting
audience of teenage students”). Signaling at least a partial
break with Tinker, Fraser left the regulation of indecent
student speech to local schools.7 478 U. S., at 683.
Similarly, in Hazelwood School Dist. v. Kuhlmeier, 484
U. S. 260 (1988), the Court made an exception to Tinker
for school-sponsored activities. The Court characterized
newspapers and similar school-sponsored activities “as
part of the school curriculum” and held that “[e]ducators
are entitled to exercise greater control over” these forms of
student expression. 484 U. S., at 271. Accordingly, the
Court expressly refused to apply Tinker’s standard. 484
U. S., at 272–273. Instead, for school-sponsored activities,
the Court created a new standard that permitted school
regulations of student speech that are “reasonably related
to legitimate pedagogical concerns.” Id., at 273.
Today, the Court creates another exception. In doing so,
we continue to distance ourselves from Tinker, but we
neither overrule it nor offer an explanation of when it
operates and when it does not. Ante, at 10–14. I am
afraid that our jurisprudence now says that students have
——————
7 Distancing itself from Tinker’s approach, the Fraser Court quoted
Justice Black’s dissent in Tinker. 478 U. S., at 686.
10 MORSE v. FREDERICK
THOMAS, J., concurring
a right to speak in schools except when they don’t—a
standard continuously developed through litigation
against local schools and their administrators. In my
view, petitioners could prevail for a much simpler reason:
As originally understood, the Constitution does not afford
students a right to free speech in public schools.
III
In light of the history of American public education, it
cannot seriously be suggested that the First Amendment
“freedom of speech” encompasses a student’s right to
speak in public schools. Early public schools gave total
control to teachers, who expected obedience and respect
from students. And courts routinely deferred to schools’
authority to make rules and to discipline students for
violating those rules. Several points are clear: (1) under in
loco parentis, speech rules and other school rules were
treated identically; (2) the in loco parentis doctrine imposed
almost no limits on the types of rules that a school
could set while students were in school; and (3) schools
and teachers had tremendous discretion in imposing punishments
for violations of those rules.
It might be suggested that the early school speech cases
dealt only with slurs and profanity. But that criticism
does not withstand scrutiny. First, state courts repeatedly
reasoned that schools had discretion to impose discipline
to maintain order. The substance of the student’s speech
or conduct played no part in the analysis. Second, some
cases involved punishment for speech on weightier matters,
for instance a speech criticizing school administrators
for creating a fire hazard. See Wooster, 27 Cal. App., at
52–53, 148 P., at 959. Yet courts refused to find an exception
to in loco parentis even for this advocacy of public
safety.
To be sure, our educational system faces administrative
and pedagogical challenges different from those faced by
Cite as: 551 U. S. ____ (2007) 11
THOMAS, J., concurring
19th-century schools. And the idea of treating children as
though it were still the 19th century would find little
support today. But I see no constitutional imperative
requiring public schools to allow all student speech. Parents
decide whether to send their children to public
schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U. S.
245, 262 (1934) (“California has not drafted or called them
to attend the university. They are seeking education
offered by the State and at the same time insisting that
they be excluded from the prescribed course . . .”); id., at
266 (Cardozo, J., concurring). If parents do not like the
rules imposed by those schools, they can seek redress in
school boards or legislatures; they can send their children
to private schools or home school them; or they can simply
move. Whatever rules apply to student speech in public
schools, those rules can be challenged by parents in the
political process.
In place of that democratic regime, Tinker substituted
judicial oversight of the day-to-day affairs of public
schools. The Tinker Court made little attempt to ground
its holding in the history of education or in the original
understanding of the First Amendment.8 Instead, it im-
——————
8 The Tinker Court claimed that “[i]t can hardly be argued that either
students or teachers shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate. This has been the unmistakable
holding of this Court for almost 50 years.” 393 U. S., at 506.
But the cases the Court cited in favor of that bold proposition do not
support it. Tinker chiefly relies upon Meyer v. Nebraska, 262 U. S. 390
(1923) (striking down a law prohibiting the teaching of German).
However, Meyer involved a challenge by a private school, id., at 396,
and the Meyer Court was quick to note that no “challenge [has] been
made of the State’s power to prescribe a curriculum for institutions
which it supports.” Id., at 402. Meyer provides absolutely no support
for the proposition that that free-speech rights apply within schools
operated by the State. And notably, Meyer relied as its chief support on
the Lochner v. New York, 198 U. S. 45 (1905), line of cases, 262 U. S., at
399, a line of cases that has long been criticized, United Haulers Assn.,
Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S.
12 MORSE v. FREDERICK
THOMAS, J., concurring
posed a new and malleable standard: Schools could not
inhibit student speech unless it “substantially interfere[d]
with the requirements of appropriate discipline in the
operation of the school.” 393 U. S., at 509 (internal quotation
marks omitted). Inherent in the application of that
standard are judgment calls about what constitutes interference
and what constitutes appropriate discipline. See
id., at 517–518 (Black, J., dissenting) (arguing that the
armbands in fact caused a disruption). Historically, courts
reasoned that only local school districts were entitled to
make those calls. The Tinker Court usurped that traditional
authority for the judiciary.
And because Tinker utterly ignored the history of public
education, courts (including this one) routinely find it
necessary to create ad hoc exceptions to its central premise.
This doctrine of exceptions creates confusion without
fixing the underlying problem by returning to first principles.
Just as I cannot accept Tinker’s standard, I cannot
subscribe to Kuhlmeier’s alternative. Local school boards,
not the courts, should determine what pedagogical interests
are “legitimate” and what rules “reasonably relat[e]”
to those interests. 484 U. S., at 273.
Justice Black may not have been “a prophet or the son of
a prophet,” but his dissent in Tinker has proved prophetic.
393 U. S., at 525. In the name of the First Amendment,
Tinker has undermined the traditional authority of teachers
to maintain order in public schools. “Once a society
that generally respected the authority of teachers, deferred
to their judgment, and trusted them to act in the
best interest of school children, we now accept defiance,
disrespect, and disorder as daily occurrences in many of
——————
___ (2007). Tinker also relied on Pierce v. Society of Sisters, 268 U. S.
510 (1925). Pierce has nothing to say on this issue either. Pierce
simply upheld the right of parents to send their children to private
school. Id., at 535.
Cite as: 551 U. S. ____ (2007) 13
THOMAS, J., concurring
our public schools.” Dupre, Should Students Have Constitutional
Rights? Keeping Order in the Public Schools, 65
Geo. Wash. L. Rev. 49, 50 (1996). We need look no further
than this case for an example: Frederick asserts a constitutional
right to utter at a school event what is either
“[g]ibberish,” ante, at 7, or an open call to use illegal
drugs. To elevate such impertinence to the status of constitutional
protection would be farcical and would indeed
be to “surrender control of the American public school
system to public school students.” Tinker, supra, at 526
(Black, J., dissenting).
* * *
I join the Court’s opinion because it erodes Tinker’s hold
in the realm of student speech, even though it does so by
adding to the patchwork of exceptions to the Tinker standard.
I think the better approach is to dispense with
Tinker altogether, and given the opportunity, I would do
so.
Cite as: 551 U. S. ____ (2007) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–278
_________________
DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH
FREDERICK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2007]
JUSTICE ALITO, with whom JUSTICE KENNEDY joins,
concurring.
I join the opinion of the Court on the understanding that
(a) it goes no further than to hold that a public school may
restrict speech that a reasonable observer would interpret
as advocating illegal drug use and (b) it provides no support
for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issue,
including speech on issues such as “the wisdom of the war
on drugs or of legalizing marijuana for medicinal use.”
See post, at 13 (STEVENS, J., dissenting).
The opinion of the Court correctly reaffirms the recognition
in Tinker v. Des Moines Independent Community
School Dist., 393 U. S. 503, 506 (1969), of the fundamental
principle that students do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse
gate.” The Court is also correct in noting that
Tinker, which permits the regulation of student speech
that threatens a concrete and “substantial disruption,” id.,
at 514, does not set out the only ground on which in-school
student speech may be regulated by state actors in a way
2 MORSE v. FREDERICK
ALITO, J., concurring
that would not be constitutional in other settings.
But I do not read the opinion to mean that there are
necessarily any grounds for such regulation that are not
already recognized in the holdings of this Court. In addition
to Tinker, the decision in the present case allows the
restriction of speech advocating illegal drug use; Bethel
School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986), permits
the regulation of speech that is delivered in a lewd or
vulgar manner as part of a middle school program; and
Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 (1988),
allows a school to regulate what is in essence the school’s
own speech, that is, articles that appear in a publication
that is an official school organ. I join the opinion of the
Court on the understanding that the opinion does not hold
that the special characteristics of the public schools necessarily
justify any other speech restrictions.
The opinion of the Court does not endorse the broad
argument advanced by petitioners and the United States
that the First Amendment permits public school officials
to censor any student speech that interferes with a
school’s “educational mission.” See Brief for Petitioners
21; Brief for United States as Amicus Curiae 6. This
argument can easily be manipulated in dangerous ways,
and I would reject it before such abuse occurs. The “educational
mission” of the public schools is defined by the
elected and appointed public officials with authority over
the schools and by the school administrators and faculty.
As a result, some public schools have defined their educational
missions as including the inculcation of whatever
political and social views are held by the members of these
groups.
During the Tinker era, a public school could have defined
its educational mission to include solidarity with our
soldiers and their families and thus could have attempted
to outlaw the wearing of black armbands on the ground
that they undermined this mission. Alternatively, a
Cite as: 551 U. S. ____ (2007) 3
ALITO, J., concurring
school could have defined its educational mission to include
the promotion of world peace and could have sought
to ban the wearing of buttons expressing support for the
troops on the ground that the buttons signified approval of
war. The “educational mission” argument would give
public school authorities a license to suppress speech on
political and social issues based on disagreement with the
viewpoint expressed. The argument, therefore, strikes at
the very heart of the First Amendment.
The public schools are invaluable and beneficent institutions,
but they are, after all, organs of the State. When
public school authorities regulate student speech, they act
as agents of the State; they do not stand in the shoes of
the students’ parents. It is a dangerous fiction to pretend
that parents simply delegate their authority—including
their authority to determine what their children may say
and hear—to public school authorities. It is even more
dangerous to assume that such a delegation of authority
somehow strips public school authorities of their status as
agents of the State. Most parents, realistically, have no
choice but to send their children to a public school and
little ability to influence what occurs in the school. It is
therefore wrong to treat public school officials, for purposes
relevant to the First Amendment, as if they were
private, nongovernmental actors standing in loco parentis.
For these reasons, any argument for altering the usual
free speech rules in the public schools cannot rest on a
theory of delegation but must instead be based on some
special characteristic of the school setting. The special
characteristic that is relevant in this case is the threat to
the physical safety of students. School attendance can
expose students to threats to their physical safety that
they would not otherwise face. Outside of school, parents
can attempt to protect their children in many ways and
may take steps to monitor and exercise control over the
persons with whom their children associate. Similarly,
4 MORSE v. FREDERICK
ALITO, J., concurring
students, when not in school, may be able to avoid threatening
individuals and situations. During school hours,
however, parents are not present to provide protection and
guidance, and students’ movements and their ability to
choose the persons with whom they spend time are severely
restricted. Students may be compelled on a daily
basis to spend time at close quarters with other students
who may do them harm. Experience shows that schools
can be places of special danger.
In most settings, the First Amendment strongly limits
the government’s ability to suppress speech on the ground
that it presents a threat of violence. See Brandenburg v.
Ohio, 395 U. S. 444 (1969) (per curiam). But due to the
special features of the school environment, school officials
must have greater authority to intervene before speech
leads to violence. And, in most cases, Tinker’s “substantial
disruption” standard permits school officials to step in
before actual violence erupts. See 393 U. S., at 508–509.
Speech advocating illegal drug use poses a threat to
student safety that is just as serious, if not always as
immediately obvious. As we have recognized in the past
and as the opinion of the Court today details, illegal drug
use presents a grave and in many ways unique threat to
the physical safety of students. I therefore conclude that
the public schools may ban speech advocating illegal drug
use. But I regard such regulation as standing at the far
reaches of what the First Amendment permits. I join the
opinion of the Court with the understanding that the
opinion does not endorse any further extension.
Cite as: 551 U. S. ____ (2007) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–278
_________________
DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH
FREDERICK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2007]
JUSTICE BREYER, concurring in the judgment in part
and dissenting in part.
This Court need not and should not decide this difficult
First Amendment issue on the merits. Rather, I believe
that it should simply hold that qualified immunity bars
the student’s claim for monetary damages and say no
more.
I
Resolving the First Amendment question presented in
this case is, in my view, unwise and unnecessary. In part
that is because the question focuses upon specific content
narrowly defined: May a school board punish students for
speech that advocates drug use and, if so, when? At the
same time, the underlying facts suggest that Principal
Morse acted as she did not simply because of the specific
content and viewpoint of Joseph Frederick’s speech but
also because of the surrounding context and manner in
which Frederick expressed his views. To say that school
officials might reasonably prohibit students during schoolrelated
events from unfurling 14-foot banners (with any
kind of irrelevant or inappropriate message) designed to
attract attention from television cameras seems unlikely
to undermine basic First Amendment principles. But to
hold, as the Court does, that “schools may take steps to
2 MORSE v. FREDERICK
Opinion of BREYER, J.
safeguard those entrusted to their care from speech that
can reasonably be regarded as encouraging illegal drug
use” (and that “schools” may “restrict student expression
that they reasonably regard as promoting illegal drug
use”) is quite a different matter. Ante, at 2, 14. This
holding, based as it is on viewpoint restrictions, raises a
host of serious concerns.
One concern is that, while the holding is theoretically
limited to speech promoting the use of illegal drugs, it
could in fact authorize further viewpoint-based restrictions.
Illegal drugs, after all, are not the only illegal substances.
What about encouraging the underage consumption
of alcohol? Moreover, it is unclear how far the Court’s
rule regarding drug advocacy extends. What about a
conversation during the lunch period where one student
suggests that glaucoma sufferers should smoke marijuana
to relieve the pain? What about deprecating commentary
about an antidrug film shown in school? And what about
drug messages mixed with other, more expressly political,
content? If, for example, Frederick’s banner had read
“LEGALIZE BONG HiTS,” he might be thought to receive
protection from the majority’s rule, which goes to speech
“encouraging illegal drug use.” Ante, at 2 (emphasis
added). But speech advocating change in drug laws might
also be perceived of as promoting the disregard of existing
drug laws.
Legal principles must treat like instances alike. Those
principles do not permit treating “drug use” separately
without a satisfying explanation of why drug use is sui
generis. To say that illegal drug use is harmful to students,
while surely true, does not itself constitute a satisfying
explanation because there are many such harms.
During a real war, one less metaphorical than the war on
drugs, the Court declined an opportunity to draw narrow
subject-matter-based lines. Cf. West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624 (1943) (holding students cannot be
Cite as: 551 U. S. ____ (2007) 3
Opinion of BREYER, J.
compelled to recite the Pledge of Allegiance during World
War II). We should decline this opportunity today.
Although the dissent avoids some of the majority’s
pitfalls, I fear that, if adopted as law, it would risk significant
interference with reasonable school efforts to maintain
discipline. What is a principal to do when a student
unfurls a 14-foot banner (carrying an irrelevant or inappropriate
message) during a school-related event in an
effort to capture the attention of television cameras?
Nothing? In my view, a principal or a teacher might
reasonably view Frederick’s conduct, in this setting, as
simply beyond the pale. And a school official, knowing
that adolescents often test the outer boundaries of acceptable
behavior, may believe it is important (for the offending
student and his classmates) to establish when a student
has gone too far.
Neither can I simply say that Morse may have taken the
right action (confiscating Frederick’s banner) but for the
wrong reason (“drug speech”). Teachers are neither lawyers
nor police officers; and the law should not demand
that they fully understand the intricacies of our First
Amendment jurisprudence. As the majority rightly points
out, the circumstances here called for a quick decision.
See ante, at 15 (noting that “Morse had to decide to act—
or not act—on the spot”). But this consideration is better
understood in terms of qualified immunity than of the
First Amendment. See infra, at 5–8.
All of this is to say that, regardless of the outcome of the
constitutional determination, a decision on the underlying
First Amendment issue is both difficult and unusually
portentous. And that is a reason for us not to decide the
issue unless we must.
In some instances, it is appropriate to decide a constitutional
issue in order to provide “guidance” for the future.
But I cannot find much guidance in today’s decision. The
Court makes clear that school officials may “restrict”
4 MORSE v. FREDERICK
Opinion of BREYER, J.
student speech that promotes “illegal drug use” and that
they may “take steps” to “safeguard” students from speech
that encourages “illegal drug use.” Ante, at 2, 8. Beyond
“steps” that prohibit the unfurling of banners at school
outings, the Court does not explain just what those “restrict[
ions]” or those “steps” might be.
Nor, if we are to avoid the risk of interpretations that
are too broad or too narrow, is it easy to offer practically
valuable guidance. Students will test the limits of acceptable
behavior in myriad ways better known to schoolteachers
than to judges; school officials need a degree of
flexible authority to respond to disciplinary challenges;
and the law has always considered the relationship between
teachers and students special. Under these circumstances,
the more detailed the Court’s supervision becomes,
the more likely its law will engender further
disputes among teachers and students. Consequently,
larger numbers of those disputes will likely make their
way from the schoolhouse to the courthouse. Yet no one
wishes to substitute courts for school boards, or to turn the
judge’s chambers into the principal’s office.
In order to avoid resolving the fractious underlying
constitutional question, we need only decide a different
question that this case presents, the question of “qualified
immunity.” See Pet. for Cert. 23–28. The principle of
qualified immunity fits this case perfectly and, by saying
so, we would diminish the risk of bringing about the adverse
consequences I have identified. More importantly,
we should also adhere to a basic constitutional obligation
by avoiding unnecessary decision of constitutional questions.
See Ashwander v. TVA, 297 U. S. 288, 347 (1936)
(Brandeis, J., concurring) (“The Court will not pass upon a
constitutional question although properly presented on the
record, if there is also present some other ground upon
which the case may be disposed of ”).
Cite as: 551 U. S. ____ (2007) 5
Opinion of BREYER, J.
II
A
The defense of “qualified immunity” requires courts to
enter judgment in favor of a government employee unless
the employee’s conduct violates “clearly established statutory
or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U. S. 800,
818 (1982). The defense is designed to protect “all but the
plainly incompetent or those who knowingly violated the
law.” Malley v. Briggs, 475 U. S. 335, 341 (1986).
Qualified immunity applies here and entitles Principal
Morse to judgment on Frederick’s monetary damages
claim because she did not clearly violate the law during
her confrontation with the student. At the time of that
confrontation, Tinker v. Des Moines Independent Commu-
nity School Dist., 393 U. S. 503, 513 (1969), indicated that
school officials could not prohibit students from wearing
an armband in protest of the Vietnam War, where the
conduct at issue did not “materially and substantially
disrupt the work and discipline of the school;” Bethel
School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986), indicated
that school officials could restrict a student’s freedom
to give a school assembly speech containing an elaborate
sexual metaphor; and Hazelwood School Dist. v.
Kuhlmeier, 484 U. S. 260 (1988), indicated that school
officials could restrict student contributions to a schoolsponsored
newspaper, even without threat of imminent
disruption. None of these cases clearly governs the case at
hand.
The Ninth Circuit thought it “clear” that these cases did
not permit Morse’s actions. See 439 F. 3d 1114, 1124
(2006). That is because, in the Ninth Circuit’s view, this
case involved neither lewd speech, cf. Fraser, supra, nor
school sponsored speech, cf. Kuhlmeier, supra, and hence
Tinker’s substantial disruption test must guide the inquiry.
See 439 F. 3d, at 1123. But unlike the Ninth Cir6
MORSE v. FREDERICK
Opinion of BREYER, J.
cuit, other courts have described the tests these cases
suggest as complex and often difficult to apply. See, e.g.,
Guiles ex rel. Guiles v. Marineau, 461 F. 3d 320, 326 (CA2
2006) (“It is not entirely clear whether Tinker’s rule applies
to all student speech that is not sponsored by schools,
subject to the rule of Fraser, or whether it applies only to
political speech or to political viewpoint-based discrimination
”); Baxter v. Vigo Cty. School Corp., 26 F. 3d 728, 737
(CA7 1994) (pointing out that Fraser “cast some doubt on
the extent to which students retain free speech rights in
the school setting”). Indeed, the fact that this Court divides
on the constitutional question (and that the majority
reverses the Ninth Circuit’s constitutional determination)
strongly suggests that the answer as to how to apply prior
law to these facts was unclear.
The relative ease with which we could decide this case
on the qualified immunity ground, and thereby avoid
deciding a far more difficult constitutional question, underscores
the need to lift the rigid “order of battle” decisionmaking
requirement that this Court imposed upon
lower courts in Saucier v. Katz, 533 U. S. 194, 201–202
(2001). In Saucier, the Court wrote that lower courts’
“first inquiry must be whether a constitutional right would
have been violated on the facts alleged.” Id., at 200. Only
if there is a constitutional violation, can lower courts
proceed to consider whether the official is entitled to
“qualified immunity.” See ibid.
I have previously explained why I believe we should
abandon Saucier’s order-of-battle rule. See Scott v. Har-
ris, 550 U. S. ___, ___ (2007) (slip op., at 1–2) (BREYER, J.,
concurring); Brosseau v. Haugen, 543 U. S. 194, 201–202
(2004) (BREYER, J., concurring). Sometimes the rule will
require lower courts unnecessarily to answer difficult
constitutional questions, thereby wasting judicial resources.
Sometimes it will require them to resolve constitutional
issues that are poorly presented. Sometimes the
Cite as: 551 U. S. ____ (2007) 7
Opinion of BREYER, J.
rule will immunize an incorrect constitutional holding
from further review. And often the rule violates the longstanding
principle that courts should “not . . . pass on
questions of constitutionality . . . unless such adjudication
is unavoidable.” Spector Motor Service, Inc. v. McLaugh-
lin, 323 U. S. 101, 105 (1944).
This last point warrants amplification. In resolving the
underlying constitutional question, we produce several
differing opinions. It is utterly unnecessary to do so.
Were we to decide this case on the ground of qualified
immunity, our decision would be unanimous, for the dissent
concedes that Morse should not be held liable in
damages for confiscating Frederick’s banner. Post, at 1
(opinion of STEVENS, J.). And the “cardinal principle of
judicial restraint” is that “if it is not necessary to decide
more, it is necessary not to decide more.” PDK Labs., Inc.
v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC
2004) (Roberts, J., concurring in part and concurring in
judgment).
If it is Saucier that tempts this Court to adhere to the
rigid “order of battle” that binds lower courts, it should
resist that temptation. Saucier does not bind this Court.
Regardless, the rule of Saucier has generated considerable
criticism from both commentators and judges. See Leval,
Judging Under the Constitution: Dicta About Dicta, 81
N. Y. U. L. Rev. 1249, 1275 (2006) (calling the requirement
“a puzzling misadventure in constitutional dictum”);
Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69–70
(CA1 2002) (referring to the requirement as “an uncomfortable
exercise” when “the answer whether there was a
violation may depend on a kaleidoscope of facts not yet
fully developed”); Lyons v. Xenia, 417 F. 3d 565, 580–584
(CA6 2005) (Sutton, J., concurring). While Saucier justified
its rule by contending that it was necessary to permit
constitutional law to develop, see 533 U. S., at 201, this
concern is overstated because overruling Saucier would
8 MORSE v. FREDERICK
Opinion of BREYER, J.
not mean that the law prohibited judges from passing on
constitutional questions, only that it did not require them
to do so. Given that Saucier is a judge-made procedural
rule, stare decisis concerns supporting preservation of the
rule are weak. See, e.g., Payne v. Tennessee, 501 U. S. 808,
828 (1991) (“Considerations in favor of stare decisis” are at
their weakest in cases “involving procedural and evidentiary
rules”).
Finally, several Members of this Court have previously
suggested that always requiring lower courts first to answer
constitutional questions is misguided. See County of
Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (STEVENS,
J., concurring in judgment) (resolving the constitutional
question first is inappropriate when that “question is both
difficult and unresolved”); Bunting v. Mellen, 541 U. S.
1019, 1025 (2004) (SCALIA, J., dissenting from denial of
certiorari) (“We should either make clear that constitutional
determinations are not insulated from our review
. . . or else drop any pretense at requiring the ordering
in every case”); Saucier, supra, at 210 (GINSBURG, J.,
concurring in judgment) (“The two-part test today’s decision
imposes holds large potential to confuse”); Siegert v.
Gilley, 500 U. S. 226, 235 (1991) (KENNEDY, J., concurring)
(“If it is plain that a plaintiff’s required malice allegations
are insufficient but there is some doubt as to the constitutional
right asserted, it seems to reverse the usual ordering
of issues to tell the trial and appellate courts that they
should resolve the constitutional question first”). I would
end the failed Saucier experiment now.
B
There is one remaining objection to deciding this case on
the basis of qualified immunity alone. The plaintiff in this
case has sought not only damages; he has also sought an
injunction requiring the school district to expunge his
suspension from its records. A “qualified immunity” deCite
as: 551 U. S. ____ (2007) 9
Opinion of BREYER, J.
fense applies in respect to damages actions, but not to
injunctive relief. See, e.g., Wood v. Strickland, 420 U. S.
308, 314, n. 6 (1975). With respect to that claim, the
underlying question of constitutionality, at least conceivably,
remains.
I seriously doubt, however, that it does remain. At the
plaintiff’s request, the school superintendent reviewed
Frederick’s 10-day suspension. The superintendent, in
turn, reduced the suspension to the eight days that Frederick
had served before the appeal. But in doing so the
superintendent noted that several actions independent of
Frederick’s speech supported the suspension, including
the plaintiff’s disregard of a school official’s instruction,
his failure to report to the principal’s office on time, his
“defiant [and] disruptive behavior,” and the “belligerent
attitude” he displayed when he finally reported. App. to
Pet. for Cert. 65a. The superintendent wrote that “were”
he to “concede” that Frederick’s “speech . . . is protected,
. . . the remainder of his behavior was not excused.” Id., at
66a.
The upshot is that the school board’s refusal to erase the
suspension from the record may well be justified on nonspeech-
related grounds. In addition, plaintiff’s counsel
appeared to agree with the Court’s suggestion at oral
argument that Frederick “would not pursue” injunctive
relief if he prevailed on the damages question. Tr. of Oral
Arg. 46–48. And finding that Morse was entitled to qualified
immunity would leave only the question of injunctive
relief.
Given the high probability that Frederick’s request for
an injunction will not require a court to resolve the constitutional
issue, see Ashwander, 297 U. S., at 347 (Brandeis,
J., concurring), I would decide only the qualified immunity
question and remand the rest of the case for an initial
consideration.
Cite as: 551 U. S. ____ (2007) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–278
_________________
DEBORAH MORSE, ET AL., PETITIONERS v. JOSEPH
FREDERICK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2007]
JUSTICE STEVENS, with whom JUSTICE SOUTER and
JUSTICE GINSBURG join, dissenting.
A significant fact barely mentioned by the Court sheds a
revelatory light on the motives of both the students and
the principal of Juneau-Douglas High School (JDHS). On
January 24, 2002, the Olympic Torch Relay gave those
Alaska residents a rare chance to appear on national
television. As Joseph Frederick repeatedly explained, he
did not address the curious message—“BONG HiTS 4
JESUS”—to his fellow students. He just wanted to get the
camera crews’ attention. Moreover, concern about a nationwide
evaluation of the conduct of the JDHS student
body would have justified the principal’s decision to remove
an attention-grabbing 14-foot banner, even if it had
merely proclaimed “Glaciers Melt!”
I agree with the Court that the principal should not be
held liable for pulling down Frederick’s banner. See Harlow
v. Fitzgerald, 457 U. S. 800, 818 (1982). I would hold,
however, that the school’s interest in protecting its students
from exposure to speech “reasonably regarded as
promoting illegal drug use,” ante, at 1, cannot justify
disciplining Frederick for his attempt to make an ambiguous
statement to a television audience simply because it
contained an oblique reference to drugs. The First
Amendment demands more, indeed, much more.
2 MORSE v. FREDERICK
STEVENS, J., dissenting
The Court holds otherwise only after laboring to establish
two uncontroversial propositions: first, that the constitutional
rights of students in school settings are not
coextensive with the rights of adults, see ante, at 8–12;
and second, that deterring drug use by schoolchildren is a
valid and terribly important interest, see ante, at 12–14.
As to the first, I take the Court’s point that the message
on Frederick’s banner is not necessarily protected speech,
even though it unquestionably would have been had the
banner been unfurled elsewhere. As to the second, I am
willing to assume that the Court is correct that the pressing
need to deter drug use supports JDHS’s rule prohibiting
willful conduct that expressly “advocates the use of
substances that are illegal to minors.” App. to Pet. for
Cert. 53a. But it is a gross non sequitur to draw from
these two unremarkable propositions the remarkable
conclusion that the school may suppress student speech
that was never meant to persuade anyone to do anything.
In my judgment, the First Amendment protects student
speech if the message itself neither violates a permissible
rule nor expressly advocates conduct that is illegal and
harmful to students. This nonsense banner does neither,
and the Court does serious violence to the First Amendment
in upholding—indeed, lauding—a school’s decision to
punish Frederick for expressing a view with which it
disagreed.
I
In December 1965, we were engaged in a controversial
war, a war that “divided this country as few other issues
ever have.” Tinker v. Des Moines Independent Community
School Dist., 393 U. S. 503, 524 (1969) (Black, J., dissenting).
Having learned that some students planned to wear
black armbands as a symbol of opposition to the country’s
involvement in Vietnam, officials of the Des Moines public
school district adopted a policy calling for the suspension
Cite as: 551 U. S. ____ (2007) 3
STEVENS, J., dissenting
of any student who refused to remove the armband. As we
explained when we considered the propriety of that policy,
“[t]he school officials banned and sought to punish petitioners
for a silent, passive expression of opinion, unaccompanied
by any disorder or disturbance on the part of
petitioners.” Id., at 508. The district justified its censorship
on the ground that it feared that the expression of a
controversial and unpopular opinion would generate disturbances.
Because the school officials had insufficient
reason to believe that those disturbances would “materially
and substantially interfere with the requirements of
discipline in the operation of the school,” we found the
justification for the rule to lack any foundation and therefore
held that the censorship violated the First Amendment.
Id., at 509 (internal quotation marks omitted).
Justice Harlan dissented, but not because he thought
the school district could censor a message with which it
disagreed. Rather, he would have upheld the district’s
rule only because the students never cast doubt on the
district’s anti-disruption justification by proving that the
rule was motivated “by other than legitimate school concerns
—for example, a desire to prohibit the expression of
an unpopular point of view while permitting expression of
the dominant opinion.” Id., at 526.
Two cardinal First Amendment principles animate both
the Court’s opinion in Tinker and Justice Harlan’s dissent.
First, censorship based on the content of speech, particularly
censorship that depends on the viewpoint
of the speaker, is subject to the most rigorous burden of
justification:
“Discrimination against speech because of its message
is presumed to be unconstitutional. . . . When the government
targets not subject matter, but particular
views taken by speakers on a subject, the violation of
the First Amendment is all the more blatant. View4
MORSE v. FREDERICK
STEVENS, J., dissenting
point discrimination is thus an egregious form of content
discrimination. The government must abstain
from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is
the rationale for the restriction.” Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U. S. 819, 828–
829 (1995) (citation omitted).
Second, punishing someone for advocating illegal conduct
is constitutional only when the advocacy is likely to provoke
the harm that the government seeks to avoid. See
Brandenburg v. Ohio, 395 U. S. 444, 449 (1969) (per curiam)
(distinguishing “mere advocacy” of illegal conduct
from “incitement to imminent lawless action”).
However necessary it may be to modify those principles
in the school setting, Tinker affirmed their continuing
vitality. 393 U. S., at 509 (“In order for the State in the
person of school officials to justify prohibition of a particular
expression of opinion, it must be able to show that its
action was caused by something more than a mere desire
to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint. Certainly where
there is no finding and no showing that engaging in that
conduct would materially and substantially interfere with
the requirements of appropriate discipline in the operation
of the school, the prohibition cannot be sustained” (internal
quotation marks omitted)). As other federal courts
have long recognized, under Tinker,
“regulation of student speech is generally permissible
only when the speech would substantially disrupt or
interfere with the work of the school or the rights of
other students. . . . Tinker requires a specific and significant
fear of disruption, not just some remote apprehension
of disturbance.” Saxe v. State College Area
School Dist., 240 F. 3d 200, 211 (CA3 2001) (Alito, J.)
(emphasis added).
Cite as: 551 U. S. ____ (2007) 5
STEVENS, J., dissenting
Yet today the Court fashions a test that trivializes the
two cardinal principles upon which Tinker rests. See ante,
at 14 (“[S]chools [may] restrict student expression that
they reasonably regard as promoting illegal drug use”).
The Court’s test invites stark viewpoint discrimination. In
this case, for example, the principal has unabashedly
acknowledged that she disciplined Frederick because she
disagreed with the pro-drug viewpoint she ascribed to the
message on the banner, see App. 25—a viewpoint, incidentally,
that Frederick has disavowed, see id., at 28. Unlike
our recent decision in Tennessee Secondary School Athletic
Assn. v. Brentwood Academy, 551 U. S. ___, ___ (2007)
(slip op., at 3), see also ante, at 3 (ALITO, J., concurring),
the Court’s holding in this case strikes at “the heart of the
First Amendment” because it upholds a punishment
meted out on the basis of a listener’s disagreement with
her understanding (or, more likely, misunderstanding) of
the speaker’s viewpoint. “If there is a bedrock principle
underlying the First Amendment, it is that the Government
may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.
” Texas v. Johnson, 491 U. S. 397, 414 (1989).
It is also perfectly clear that “promoting illegal drug
use,” ante, at 14, comes nowhere close to proscribable
“incitement to imminent lawless action.” Brandenburg,
395 U. S., at 447. Encouraging drug use might well increase
the likelihood that a listener will try an illegal
drug, but that hardly justifies censorship:
“Every denunciation of existing law tends in some
measure to increase the probability that there will be
violation of it. Condonation of a breach enhances the
probability. Expressions of approval add to the probability.
. . . Advocacy of law-breaking heightens it still
further. But even advocacy of violation, however reprehensible
morally, is not a justification for denying
6 MORSE v. FREDERICK
STEVENS, J., dissenting
free speech where the advocacy falls short of incitement
and there is nothing to indicate that the advocacy
would be immediately acted upon.” Whitney v.
California, 274 U. S. 357, 376 (1927) (Brandeis, J.,
concurring).
No one seriously maintains that drug advocacy (much less
Frederick’s ridiculous sign) comes within the vanishingly
small category of speech that can be prohibited because of
its feared consequences. Such advocacy, to borrow from
Justice Holmes, “ha[s] no chance of starting a present
conflagration.” Gitlow v. New York, 268 U. S. 652, 673
(1925) (dissenting opinion).
II
The Court rejects outright these twin foundations of
Tinker because, in its view, the unusual importance of
protecting children from the scourge of drugs supports a
ban on all speech in the school environment that promotes
drug use. Whether or not such a rule is sensible as a
matter of policy, carving out pro-drug speech for uniquely
harsh treatment finds no support in our case law and is
inimical to the values protected by the First Amendment.1
See infra, at 14–16.
I will nevertheless assume for the sake of argument that
the school’s concededly powerful interest in protecting its
students adequately supports its restriction on “any assembly
or public expression that . . . advocates the use of
substances that are illegal to minors . . . .” App. to Pet. for
Cert. 53a. Given that the relationship between schools
and students “is custodial and tutelary, permitting a
degree of supervision and control that could not be exercised
over free adults,” Vernonia School Dist. 47J v. Acton,
——————
1 I also seriously question whether such a ban could really be enforced.
Consider the difficulty of monitoring student conversations
between classes or in the cafeteria.
Cite as: 551 U. S. ____ (2007) 7
STEVENS, J., dissenting
515 U. S. 646, 655 (1995), it might well be appropriate to
tolerate some targeted viewpoint discrimination in this
unique setting. And while conventional speech may be
restricted only when likely to “incit[e] imminent lawless
action,” Brandenburg, 395 U. S., at 449, it is possible that
our rigid imminence requirement ought to be relaxed at
schools. See Bethel School Dist. No. 403 v. Fraser, 478
U. S. 675, 682 (1986) (“[T]he constitutional rights of students
in public school are not automatically coextensive
with the rights of adults in other settings”).
But it is one thing to restrict speech that advocates drug
use. It is another thing entirely to prohibit an obscure
message with a drug theme that a third party subjectively
—and not very reasonably—thinks is tantamount to
express advocacy. Cf. Masses Publishing Co. v. Patten,
244 F. 535, 540, 541 (SDNY 1917) (Hand, J.) (distinguishing
sharply between “agitation, legitimate as such” and
“the direct advocacy” of unlawful conduct). Even the
school recognizes the paramount need to hold the line
between, on the one hand, non-disruptive speech that
merely expresses a viewpoint that is unpopular or contrary
to the school’s preferred message, and on the other
hand, advocacy of an illegal or unsafe course of conduct.
The district’s prohibition of drug advocacy is a gloss on a
more general rule that is otherwise quite tolerant of nondisruptive
student speech:
“Students will not be disturbed in the exercise of their
constitutionally guaranteed rights to assemble peaceably
and to express ideas and opinions, privately or
publicly, provided that their activities do not infringe
on the rights of others and do not interfere with the
operation of the educational program.
“The Board will not permit the conduct on school
premises of any willful activity . . . that interferes
with the orderly operation of the educational program
8 MORSE v. FREDERICK
STEVENS, J., dissenting
or offends the rights of others. The Board specifically
prohibits . . . any assembly or public expression that
. . . advocates the use of substances that are illegal to
minors . . . .” App. to Pet. for Cert. 53a; see also ante,
at 3 (quoting rule in part).
There is absolutely no evidence that Frederick’s banner’s
reference to drug paraphernalia “willful[ly]” infringed on
anyone’s rights or interfered with any of the school’s educational
programs.2 On its face, then, the rule gave Frederick
wide berth “to express [his] ideas and opinions” so
long as they did not amount to “advoca[cy]” of drug use.
Ibid. If the school’s rule is, by hypothesis, a valid one, it is
valid only insofar as it scrupulously preserves adequate
space for constitutionally protected speech. When First
Amendment rights are at stake, a rule that “sweep[s] in a
great variety of conduct under a general and indefinite
characterization” may not leave “too wide a discretion in
its application.” Cantwell v. Connecticut, 310 U. S. 296,
308 (1940). Therefore, just as we insisted in Tinker that
the school establish some likely connection between the
armbands and their feared consequences, so too JDHS
must show that Frederick’s supposed advocacy stands a
meaningful chance of making otherwise-abstemious students
try marijuana.
But instead of demanding that the school make such a
showing, the Court punts. Figuring out just how it punts
is tricky; “[t]he mode of analysis [it] employ[s] is not entirely
clear,” see ante, at 9. On occasion, the Court suggests
it is deferring to the principal’s “reasonable” judg-
——————
2 It is also relevant that the display did not take place “on school
premises,” as the rule contemplates. App. to Pet. for Cert. 53a. While a
separate district rule does make the policy applicable to “social events
and class trips,” id., at 58a, Frederick might well have thought that the
Olympic Torch Relay was neither a “social event” (for example, prom)
nor a “class trip.”
Cite as: 551 U. S. ____ (2007) 9
STEVENS, J., dissenting
ment that Frederick’s sign qualified as drug advocacy.3 At
other times, the Court seems to say that it thinks the
banner’s message constitutes express advocacy.4 Either
way, its approach is indefensible.
To the extent the Court defers to the principal’s ostensibly
reasonable judgment, it abdicates its constitutional
responsibility. The beliefs of third parties, reasonable or
otherwise, have never dictated which messages amount to
proscribable advocacy. Indeed, it would be a strange
constitutional doctrine that would allow the prohibition of
only the narrowest category of speech advocating unlawful
conduct, see Brandenburg, 395 U. S., at 447–448, yet
would permit a listener’s perceptions to determine which
speech deserved constitutional protection.5
Such a peculiar doctrine is alien to our case law. In
——————
3 See ante, at 1 (stating that the principal “reasonably regarded” Frederick
’s banner as “promoting illegal drug use”); ante, at 6 (explaining
that “Principal Morse thought the banner would be interpreted by those
viewing it as promoting illegal drug use, and that interpretation is
plainly a reasonable one”); ante, at 8 (asking whether “a principal may
. . . restrict student speech . . . when that speech is reasonably viewed
as promoting illegal drug use”); ante, at 14 (holding that “schools [may]
restrict student expression that they reasonably regard as promoting
illegal drug use”); see also ante, at 1 (ALITO, J., concurring) (“[A] public
school may restrict speech that a reasonable observer would interpret
as advocating illegal drug use”).
4 See ante, at 7 (“We agree with Morse. At least two interpretations
of the words on the banner demonstrate that the sign advocated the use
of illegal drugs”); ante, at 15 (observing that “[w]e have explained our
view” that “Frederick’s banner constitutes promotion of illegal drug
use”).
5 The reasonableness of the view that Frederick’s message was unprotected
speech is relevant to ascertaining whether qualified immunity
should shield the principal from liability, not to whether her actions
violated Frederick’s constitutional rights. Cf. Saucier v. Katz, 533 U. S.
194, 202 (2001) (“The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he
confronted”).
10 MORSE v. FREDERICK
STEVENS, J., dissenting
Abrams v. United States, 250 U. S. 616 (1919), this Court
affirmed the conviction of a group of Russian “rebels,
revolutionists, [and] anarchists,” id., at 617–618 (internal
quotation marks omitted), on the ground that the leaflets
they distributed were thought to “incite, provoke, and
encourage resistance to the United States,” id., at 617
(internal quotation marks omitted). Yet Justice Holmes’
dissent—which has emphatically carried the day—never
inquired into the reasonableness of the United States’
judgment that the leaflets would likely undermine the war
effort. The dissent instead ridiculed that judgment: “nobody
can suppose that the surreptitious publishing of a
silly leaflet by an unknown man, without more, would
present any immediate danger that its opinions would
hinder the success of the government arms or have any
appreciable tendency to do so.” Id., at 628. In Thomas v.
Collins, 323 U. S. 516 (1945) (opinion for the Court by
Rutledge, J.), we overturned the conviction of a union
organizer who violated a restraining order forbidding him
from exhorting workers. In so doing, we held that the
distinction between advocacy and incitement could not
depend on how one of those workers might have understood
the organizer’s speech. That would “pu[t] the
speaker in these circumstances wholly at the mercy of the
varied understanding of his hearers and consequently of
whatever inference may be drawn as to his intent and
meaning.” Id., at 535. In Cox v. Louisiana, 379 U. S. 536,
543 (1965), we vacated a civil rights leader’s conviction for
disturbing the peace, even though a Baton Rouge sheriff
had “deem[ed]” the leader’s “appeal to . . . students to sit
in at the lunch counters to be ‘inflammatory.’ ” We never
asked if the sheriff’s in-person, on-the-spot judgment was
“reasonable.” Even in Fraser, we made no inquiry into
whether the school administrators reasonably thought the
student’s speech was obscene or profane; we rather satisfied
ourselves that “[t]he pervasive sexual innuendo in
Cite as: 551 U. S. ____ (2007) 11
STEVENS, J., dissenting
Fraser’s speech was plainly offensive to both teachers and
students—indeed, to any mature person.” 478 U. S., at
683. Cf. Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 499 (1984) (“[I]n cases raising First
Amendment issues we have repeatedly held that an appellate
court has an obligation to make an independent examination
of the whole record in order to make sure that
the judgment does not constitute a forbidden intrusion on
the field of free expression” (internal quotation marks
omitted)).6
To the extent the Court independently finds that
“BONG HiTS 4 JESUS” objectively amounts to the advocacy
of illegal drug use—in other words, that it can most
reasonably be interpreted as such—that conclusion practically
refutes itself. This is a nonsense message, not advocacy.
The Court’s feeble effort to divine its hidden meaning
is strong evidence of that. Ante, at 7 (positing that the
——————
6 This same reasoning applies when the interpreter is not just a listener,
but a legislature. We have repeatedly held that “[d]eference to a
legislative finding” that certain types of speech are inherently harmful
“cannot limit judicial inquiry when First Amendment rights are at
stake,” reasoning that “the judicial function commands analysis of
whether the specific conduct charged falls within the reach of the
statute and if so whether the legislation is consonant with the Constitution.
” Landmark Communications, Inc. v. Virginia, 435 U. S. 829,
843, 844 (1978); see also Whitney v. California, 274 U. S. 357, 378–379
(1927) (Brandeis, J., concurring) (“[A legislative declaration] does not
preclude enquiry into the question whether, at the time and under the
circumstances, the conditions existed which are essential to validity
under the Federal Constitution. . . . Whenever the fundamental rights
of free speech and assembly are alleged to have been invaded, it must
remain open to a defendant to present the issue whether there actually
did exist at the time a clear danger; whether the danger, if any, was
imminent; and whether the evil apprehended was so substantial as to
justify the stringent restriction interposed by the legislature”). When
legislatures are entitled to no deference as to whether particular speech
amounts to a “clear and present danger,” id., at 379, it is hard to
understand why the Court would so blithely defer to the judgment of a
single school principal.
12 MORSE v. FREDERICK
STEVENS, J., dissenting
banner might mean, alternatively, “ ‘[Take] bong hits,’ ”
“ ‘bong hits [are a good thing],’ ” or “ ‘[we take] bong hits’ ”).
Frederick’s credible and uncontradicted explanation for
the message—he just wanted to get on television—is also
relevant because a speaker who does not intend to persuade
his audience can hardly be said to be advocating
anything.7 But most importantly, it takes real imagination
to read a “cryptic” message (the Court’s characterization,
not mine, see ibid., at 6) with a slanting drug reference
as an incitement to drug use. Admittedly, some high
school students (including those who use drugs) are dumb.
Most students, however, do not shed their brains at the
schoolhouse gate, and most students know dumb advocacy
when they see it. The notion that the message on this
banner would actually persuade either the average student
or even the dumbest one to change his or her behavior
is most implausible. That the Court believes such a
silly message can be proscribed as advocacy underscores
the novelty of its position, and suggests that the principle
it articulates has no stopping point.
Even if advocacy could somehow be wedged into Frederick
’s obtuse reference to marijuana, that advocacy was at
best subtle and ambiguous. There is abundant precedent,
including another opinion THE CHIEF JUSTICE announces
today, for the proposition that when the “First Amendment
is implicated, the tie goes to the speaker,” Federal
Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S.
___ (2007) (slip op., at 21) and that “when it comes to
defining what speech qualifies as the functional equivalent
of express advocacy . . . we give the benefit of the doubt to
speech, not censorship,” post, at 29. If this were a close
——————
7 In affirming Frederick’s suspension, the JDHS superintendent acknowledged
that Frederick displayed his message “for the benefit of
television cameras covering the Torch Relay.” App. to Pet. for Cert.
62a.
Cite as: 551 U. S. ____ (2007) 13
STEVENS, J., dissenting
case, the tie would have to go to Frederick’s speech, not to
the principal’s strained reading of his quixotic message.
Among other things, the Court’s ham-handed, categorical
approach is deaf to the constitutional imperative to
permit unfettered debate, even among high-school students,
about the wisdom of the war on drugs or of legalizing
marijuana for medicinal use.8 See Tinker, 393 U. S., at
511 (“[Students] may not be confined to the expression of
those sentiments that are officially approved”). If Frederick
’s stupid reference to marijuana can in the Court’s view
justify censorship, then high school students everywhere
could be forgiven for zipping their mouths about drugs at
school lest some “reasonable” observer censor and then
punish them for promoting drugs. See also ante, at 2
(BREYER, J., concurring in judgment in part and dissenting
in part).
Consider, too, that the school district’s rule draws no
distinction between alcohol and marijuana, but applies
evenhandedly to all “substances that are illegal to mi-
——————
8 The Court’s opinion ignores the fact that the legalization of marijuana
is an issue of considerable public concern in Alaska. The State
Supreme Court held in 1975 that Alaska’s constitution protects the
right of adults to possess less than four ounces of marijuana for personal
use. Ravin v. State, 537 P. 2d 494 (Alaska). In 1990, the voters of
Alaska attempted to undo that decision by voting for a ballot initiative
recriminalizing marijuana possession. Initiative Proposal No. 2, §§1–2
(effective Mar. 3, 1991), 11 Alaska Stat., p. 872 (Lexis 2006). At the
time Frederick unfurled his banner, the constitutionality of that referendum
had yet to be tested. It was subsequently struck down as
unconstitutional. See Noy v. State, 83 P. 3d 538 (Alaska App. 2003). In
the meantime, Alaska voters had approved a ballot measure decriminalizing
the use of marijuana for medicinal purposes, 1998 Ballot
Measure No. 8 (approved Nov. 3, 1998), 11 Alaska Stat., p. 882 (codified
at Alaska Stat. §§11.71.090, 17.37.010–17.37.080), and had rejected a
much broader measure that would have decriminalized marijuana
possession and granted amnesty to anyone convicted of marijuanarelated
crimes, see 2000 Ballot Measure No. 5 (failed Nov. 7, 2000), 11
Alaska Stat., p. 886.
14 MORSE v. FREDERICK
STEVENS, J., dissenting
nors.” App. to Pet. for Cert. 53a; see also App. 83 (expressly
defining “ ‘drugs’ ” to include “all alcoholic beverages
”). Given the tragic consequences of teenage alcohol
consumption—drinking causes far more fatal accidents
than the misuse of marijuana—the school district’s interest
in deterring teenage alcohol use is at least comparable
to its interest in preventing marijuana use. Under the
Court’s reasoning, must the First Amendment give way
whenever a school seeks to punish a student for any
speech mentioning beer, or indeed anything else that
might be deemed risky to teenagers? While I find it hard
to believe the Court would support punishing Frederick
for flying a “WINE SiPS 4 JESUS” banner—which could
quite reasonably be construed either as a protected religious
message or as a pro-alcohol message—the breathtaking
sweep of its opinion suggests it would.
III
Although this case began with a silly, nonsensical banner,
it ends with the Court inventing out of whole cloth a
special First Amendment rule permitting the censorship of
any student speech that mentions drugs, at least so long
as someone could perceive that speech to contain a latent
pro-drug message. Our First Amendment jurisprudence
has identified some categories of expression that are less
deserving of protection than others—fighting words, obscenity,
and commercial speech, to name a few. Rather
than reviewing our opinions discussing such categories, I
mention two personal recollections that have no doubt
influenced my conclusion that it would be profoundly
unwise to create special rules for speech about drug and
alcohol use.
The Vietnam War is remembered today as an unpopular
war. During its early stages, however, “the dominant
opinion” that Justice Harlan mentioned in his Tinker
dissent regarded opposition to the war as unpatriotic, if
Cite as: 551 U. S. ____ (2007) 15
STEVENS, J., dissenting
not treason. 393 U. S., at 526. That dominant opinion
strongly supported the prosecution of several of those who
demonstrated in Grant Park during the 1968 Democratic
Convention in Chicago, see United States v. Dellinger, 472
F. 2d 340 (CA7 1972), and the vilification of vocal opponents
of the war like Julian Bond, cf. Bond v. Floyd, 385
U. S. 116 (1966). In 1965, when the Des Moines students
wore their armbands, the school district’s fear that they
might “start an argument or cause a disturbance” was well
founded. Tinker, 393 U. S., at 508. Given that context,
there is special force to the Court’s insistence that “our
Constitution says we must take that risk; and our history
says that it is this sort of hazardous freedom—this kind of
openness—that is the basis of our national strength and of
the independence and vigor of Americans who grow up
and live in this relatively permissive, often disputatious,
society.” Id., at 508–509 (citation omitted). As we now
know, the then-dominant opinion about the Vietnam War
was not etched in stone.
Reaching back still further, the current dominant opinion
supporting the war on drugs in general, and our antimarijuana
laws in particular, is reminiscent of the opinion
that supported the nationwide ban on alcohol consumption
when I was a student. While alcoholic beverages are now
regarded as ordinary articles of commerce, their use was
then condemned with the same moral fervor that now
supports the war on drugs. The ensuing change in public
opinion occurred much more slowly than the relatively
rapid shift in Americans’ views on the Vietnam War, and
progressed on a state-by-state basis over a period of many
years. But just as prohibition in the 1920’s and early
1930’s was secretly questioned by thousands of otherwise
law-abiding patrons of bootleggers and speakeasies, today
the actions of literally millions of otherwise law-abiding
16 MORSE v. FREDERICK
STEVENS, J., dissenting
users of marijuana,9 and of the majority of voters in each
of the several States that tolerate medicinal uses of the
product,10 lead me to wonder whether the fear of disapproval
by those in the majority is silencing opponents of
the war on drugs. Surely our national experience with
alcohol should make us wary of dampening speech suggesting
—however inarticulately—that it would be better
to tax and regulate marijuana than to persevere in a futile
effort to ban its use entirely.
Even in high school, a rule that permits only one point
of view to be expressed is less likely to produce correct
answers than the open discussion of countervailing views.
Whitney, 274 U. S., at 377 (Brandeis, J., concurring);
Abrams, 250 U. S., at 630 (Holmes, J., dissenting); Tinker,
393 U. S., at 512. In the national debate about a serious
issue, it is the expression of the minority’s viewpoint that
most demands the protection of the First Amendment.
Whatever the better policy may be, a full and frank discussion
of the costs and benefits of the attempt to prohibit
the use of marijuana is far wiser than suppression of
speech because it is unpopular.
I respectfully dissent.

9 See Gonzales v. Raich, 545 U. S. 1, 21, n. 31 (2005) (citing a Government
estimate “that in 2000 American users spent $10.5 billion on
the purchase of marijuana”).
10 Id., at 5 (noting that “at least nine States . . . authorize the use of
marijuana for medicinal purposes”).