Smith: ‘Bong’ ruling offers helpful tips
By Ellie Ashford
The “Bong Hits 4 Jesus” case, Frederick v. Morse, did not exactly hit a “home run” in terms of giving school districts more authority to regulate student speech, but it does provide some helpful guidance, attorney Michael E. Smith said at the School Law Seminar on Friday.
In the 2007 Morse ruling, the Supreme Court upheld the right of a principal to suspend a student for refusing to take down a banner with the slogan “Bong Hits 4 Jesus” at an Olympic torch rally outside the school.
The Supreme Court ruled the banner could be viewed as advocating drug use and noted that the school district had a policy that prohibited “any assembly or public expression that advocates the use of substances that are illegal to minors.”
Morse expands on previous rulings that allowed schools to restrict student speech that is “lewd, vulgar, obscene, or plainly offensive” (Bethel v. Fraser) and speech that is considered to be part of the school curriculum, such as speech published in a school newspaper (Hazelwood v. Kuhlmeier).
Smith said Morse focused on the speech’s content, not the intent. He noted that most courts subsequently have read Morse narrowly and only given districts the authority to regulate speech promoting drug use.
As a result, Morse might not offer a “clear, analytical framework” for regulating student speech, he said. It does lay the groundwork for future rulings, however, particularly with regard to speech that promotes violence.
He said the best-reasoned ruling after Morse is Ponce v. Socorro Independent School District. The 5th U.S. Circuit Court of Appeals upheld a school district’s right to discipline a student who wrote about harming other students and referred to the Columbine High School shootings.
In agreeing with the school’s contention that the writings constituted “threat speech,” the court cited Justice Samuel Alito’s concurrent opinion in Morse that “the recent history of school violence in the United States is a compelling justification for regulation of student speech threatening mass violence” even without a “forecast of substantial disruption.”
Smith offered the following checklist to determine whether a school has the authority to discipline student speech:
• Is it school-sponsored speech?
• Is the speech lewd, vulgar, obscene, or plainly offensive?
• Does the speech promote illegal drug use?
• Is the speech “high value,” such as political or social commentary,” or “low value,” such as the “bong hits” banner?
• If the speech does not fall into any of those categories, can the speech be expected to cause substantial disruption to the school environment?
• Does the speech infringe on the rights of other students, based on such “core identifying characteristics” as race, religion, or sexual orientation?
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