ACLU Urges Supreme Court Not to Abandon Landmark Student Free Speech Ruling

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Mary Beth Tinker, Plaintiff in Vietnam-Era Student Free Speech Case, Supports ACLU in Battle Over “Bong Hits 4 Jesus” Banner

WASHINGTON – The American Civil Liberties Union today urged the U.S. Supreme Court not to abandon its famous 1969 ruling that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The issue before the Court in today’s argument, Morse v. Frederick (06-278), is whether a school can censor non-disruptive student speech merely because it disagrees with the message, especially when the speech occurs off campus. The case arose in 2002 when Joseph Frederick, a student at Juneau-Douglas High School in Juneau, Alaska, was suspended for 10 days for holding up a humorous sign that the principal interpreted as a pro-drug message.

“This is not a case about drugs or drug policy,” said Frederick’s attorney, Douglas K. Mertz, who argued the case before the Justices today. “This case is about freedom of speech and teaching our young people the importance of free speech.”

“For decades the law has been that students have the constitutional right to free speech even on school campuses,” he added. “In this case the school district seeks to overrule decades of solid sensible law and to extend its reach to punish student speech that doesn’t even take place on the school campus.”

The plaintiff in the case, Joseph Frederick, has since graduated. Now 23, he is teaching English to high school students in China while he completes course work toward a degree at the University of Idaho.

School officials, represented by former U.S. Solicitor General and Whitewater independent counsel Ken Starr, have taken the position that they may restrict any student speech that is inconsistent with the educational mission of the school. “If that proposition were to be adopted, it would virtually be the end of student free speech rights,” said ACLU National Legal Director Steven R. Shapiro. “The Supreme Court famously said that students do not shed their rights at the schoolhouse gate and that is the principle we are still fighting for 40 years later.”

Shapiro pointed to an important Supreme Court precedent on students’ free speech rights from the Vietnam War era. In 1969, teenage siblings John and Mary Beth Tinker won the right to protest the Vietnam War by wearing black armbands in school. Since then, the Tinker case has set the standard for students’ free speech.

Tinker, now 54, traveled to Washington today to hear the arguments before the Court and lend her support to the case, which has attracted national attention.

“I understand Joe’s determination to test the First Amendment,” said Tinker, who works as a nurse and is still active in students’ rights and anti-war issues. “Students have a lot to speak out about, and they are the natural ones to do it. That’s what our democracy is all about — that the ones affected should have a say.”

The case has attracted support from more than a dozen groups across the ideological spectrum, from the conservative American Center for Law and Justice, Christian Legal Society and Rutherford Institute to the Student Press Law Center, Lambda Legal Defense and Education Fund, Drug Policy Alliance and National Coalition Against Censorship.

Frederick is represented by Mertz, of Juneau, Alaska; Shapiro, Catherine Crump and Jonathan Miller of the national ACLU; and Jason Brandeis, Legal Director of the ACLU of Alaska.

Further information about the case, including photos, legal documents and a podcast conversation between Joe Frederick and Mary Beth Tinker, is online at: www.aclu.org/frederick.