# Morgan v. Swanson

> Court of Appeals for the Fifth Circuit · September 27, 2011 · 659 F.3d 359

URL: https://www.frixlaw.com/law-library/cases/8412118

## Case

- **Full name:** Doug MORGAN v. Lynn SWANSON
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 27, 2011
- **Citations:** 659 F.3d 359; 2011 U.S. App. LEXIS 19656; 2011 WL 4470233
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Benavides, Clement, Davis, Demoss, Dennis, Elrod, Garza, Haynes, Jolly, Jones, King, Owen, Prado, Smith, Southwick, Stewart, Together
- **Cited by:** 623 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8412118

## How later opinions describe it (automated extraction)

- concluding that an analysis of whether student speech infringes on the right to be let alone may “look different in the elementary- school context” given that elementary students are “more susceptible to coercion and peer pressure” than older students
- holding, for the majority, that discriminating against student speech on the basis of religious viewpoint violated the First Amendment and concluding, in dissent, that the right was clearly established
- holding that student passing out pencils with the word “Jesus” on them during non-curricular time was protected by the First Amendment
- holding “[t]he defendants in this case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct ‘beyond debate’ ”

## Opinion text

EDITH H. JONES, Chief Judge,
together with E. GRADY JOLLY and LESLIE H. SOUTHWICK, Circuit Judges,
specially concurring:
I fully agree with Judge Elrod’s passionate defense of the centrality of free speech for school children and the axiomatic prohibition of viewpoint discrimination. But I lament that, as Judge Benavides’s opinion shows, many other courts have simply not seen the issues that way in somewhat analogous cases to the one before us. 1 I regretfully vote to reverse the denial of qualified immunity to these principals.
Doing so, however, makes no sense unless the en banc court attempts to state the law correctly and prevent school officials in the future from censoring private speech by students simply because it is religious. I vote to adopt Parts III A, C and D of Judge Elrod’s analysis showing that the actions of these principals violated the students’ freedom to communicate with their peers in each of the four instances before us. These instances do not fall within Hazelwood, as Judge Elrod demonstrates. Our firm statement of the principles supporting the children’s free speech in these instances is important to clarify the law of the Fifth Circuit.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8412118. Public record. Not legal advice.