551 U.S. 393 (2007)
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah.1
The torchbearers were to proceed along a street in front of Juneau-Douglas High School while school was in session.2 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.3 Students were allowed to leave class to observe the relay from either side of the street.4 Teachers and administrative officials monitored the students’ actions.5
Respondent Joseph Frederick, a JDHS senior, was late to school that day.6 When he arrived, he joined his friends across the street from the school to watch the event.7 As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase “BONG HiTS 4 JESUS.”8 The large banner was easily readable by the students on the other side of the street.9
Principal Morse immediately crossed the street and demanded that the banner be taken down.10 Everyone but Frederick complied.11 Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days.12 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.13 Juneau School Board Policy No. 5520 states that the Board specifically prohibits any assembly or public expression that advocates the use of substances that are illegal to minors.14 In addition, Juneau School Board Policy No. 5850 subjects pupils who participate in approved social events and class trips to the same student conduct rules that apply during the regular school program.15
Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to time served.16 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 school-sanctioned activity.17 The superintendent further explained that Frederick was not disciplined because the principal disagreed with his message, but because his speech appeared to advocate the use of illegal drugs.18
Frederick then filed suit under 42 U.S.C. § 1983, alleging that the school board and Morse had violated his First Amendment rights.19 The District Court granted summary judgment for the school board and Morse.20 The Ninth Circuit reversed, deciding that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, but finding a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a risk of substantial disruption.21 The Ninth Circuit 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.22 The Supreme Court granted certiorari on the questions of whether Frederick had a First Amendment right to wield his banner and whether that right was so clearly established that the principal may be held liable for damages.23
Whether Frederick had a First Amendment right to display his banner at the school-sanctioned event?24
No. The Olympic Torch Relay event occurred during normal school hours and was sanctioned by Principal Morse as an approved social event or class trip at which the district’s student-conduct rules expressly applied.2728 Teachers and administrative officials monitored the students’ actions. Frederick, a JDHS senior who was late to school that day, joined his friends across the street from the school to watch the event.29 As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase “BONG HiTS 4 JESUS.
” The large banner was easily readable by the students on the other side of the street. Principal Morse immediately crossed the street and demanded that the banner be taken down because she thought it encouraged illegal drug use, in violation of established school policy prohibiting advocacy of substances illegal to minors.30 The superintendent upheld the suspension on the ground that Frederick’s speech appeared to advocate the use of illegal drugs during a school-sanctioned activity.31 Because the banner was reasonably viewed as promoting illegal drug use, the school officials did not violate Frederick’s First Amendment rights by confiscating the banner and suspending him.32
Frederick did not have a First Amendment right to display his banner at the school-sanctioned event.33
Related opinions on this issue
Justice Thomas concurs in the judgment but writes separately to argue that the standard set forth in Tinker is without basis in the Constitution.34 He contends that under the history of public education and the doctrine of in loco parentis, the First Amendment does not protect student speech in public schools at all.35 Thomas would dispense with Tinker altogether rather than create exceptions to it.36
Early public schools gave total control to teachers who expected obedience, and courts routinely deferred to schools’ authority to make rules and discipline students.37
Joined by Justice Kennedy
Justice Alito joins the opinion on the understanding that 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.38 He emphasizes that the opinion provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including the wisdom of the war on drugs.39 Alito stresses that the special characteristic relevant here is the threat to physical safety of students from drug use, and that the holding stands at the far reaches of what the First Amendment permits.40
Joined by Justices Souter And Ginsburg
Justice Stevens dissents, arguing that the Court's decision does serious violence to the First Amendment.41 He maintains that the banner was a nonsense message not advocating drug use, and that punishing Frederick for an ambiguous statement that a third party subjectively thinks promotes drugs is unconstitutional.42 Stevens would hold that the school's interest cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience.43
The banner's reference to drug paraphernalia did not willfully infringe on anyone's rights or interfere with the school's educational programs.44
Whether that right was so clearly established that the principal may be held liable for damages?45
Qualified immunity shields public officials from money damages unless the official violated a clearly established statutory or constitutional right of which a reasonable person would have known.46
No. Because Frederick had no First Amendment right to display the banner, there was no constitutional violation, and thus no basis for holding the principal liable for damages.47 The Court resolved the first question against Frederick and therefore had no occasion to reach the second question of qualified immunity. Even if the right existed, the law was not clearly established at the time, as prior cases like Tinker, Fraser, and Kuhlmeier did not clearly govern this situation involving speech reasonably viewed as promoting illegal drug use at a school event.48
The principal may not be held liable for damages because Frederick had no clearly established First Amendment right that was violated.49
Related opinions on this issue
Justice Breyer concurs in the judgment in part and dissents in part.50 He believes the Court should decide the case on qualified immunity grounds without reaching the difficult First Amendment issue.51 Breyer argues that resolving the merits is unwise and unnecessary, and that qualified immunity bars the student's claim for monetary damages because the law was not clearly established.52
He would hold that Morse is entitled to qualified immunity and remand the injunctive relief claim.53 The defense protects all but the plainly incompetent or those who knowingly violated the law.54