OPINION OF THE COURT MORSE V. FREDERICK 551 U. S. ____ (2007) 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 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 pro-drug 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 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 school-sanctioned 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 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 demonstrating 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.[ Footnote 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 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 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
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 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 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 Kuhlmeier , 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 material 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.[ Footnote 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, 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 Vernonia , 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 Vernonia 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 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.

															   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 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. Footnote 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
non-speech-related grounds. Footnote 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 . ALITO, J., CONCURRING MORSE V. FREDERICK 551 U. S. ____ (2007) 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
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 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, 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. THOMAS, J., CONCURRING MORSE V. FREDERICK 551 U. S. ____ (2007) 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
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.[ Footnote 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 & 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)).[ Footnote 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 enforce rules, and to maintain
order.[ Footnote 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. 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
self-restraint, 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).[ Footnote 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 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).[ Footnote 5 ]

															   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).[ Footnote 6 ]

															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 . Perhaps 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.[ Footnote 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 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 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.[ Footnote 8 ] Instead, it imposed 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 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. Footnote 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). Footnote 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). Footnote 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. Footnote 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”). Footnote 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 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). Footnote 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”). Footnote 7 Distancing itself from Tinker ’s
approach, the Fraser Court quoted Justice Black’s dissent
in Tinker . 478 U. S., at 686. Footnote 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. ___ (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. STEVENS, J., DISSENTING MORSE V. FREDERICK 551 U. S. ____ (2007) 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.

															   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
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,
par- ticularly 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. Viewpoint 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).

															   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 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.[ Footnote 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 , 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 non-disruptive
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 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.[ Footnote 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” judgment
that Frederick’s sign qualified as drug advocacy.[ Footnote 3 ] At other times, the Court seems
to say that it thinks the banner’s message constitutes
express advocacy.[ Footnote 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.[ Footnote
5 ]

															   Such a peculiar doctrine is alien to our case
law. In 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 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)).[ Footnote 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
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.[ Footnote 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 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.[ Footnote 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 minors.” 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 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 users of marijuana,[ Footnote 9 ] and of the majority of voters in each of the
several States that tolerate medicinal uses of the
product,[ Footnote 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. Footnote 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. Footnote 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.” Footnote 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”). Footnote 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”). Footnote 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”). Footnote 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. Footnote 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. Footnote 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 marijuana-related crimes, see 2000 Ballot Measure No.
5 (failed Nov. 7, 2000), 11 Alaska Stat., p. 886. Footnote 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”). Footnote 10 Id., at 5 (noting that “at least
nine States … authorize the use of marijuana for medicinal
purposes”). 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 school-related 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 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 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” 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 ”).

															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
Community 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 school-sponsored 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 Circuit, 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. Harris , 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 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. McLaughlin , 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 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 re- view … 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” defense 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
non-speech-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.