Amicus Curiae Brief — Morse v. Frederick

241

No. 06-278 he ae

ae

IN THE

Supreme Court of the Anited States

DEBORAH MORSE, ET AL., Petitioners,

Vv.

JOSEPH FREDERICK, Respondent

On Writ of Certiorari to the

United States Court of Appeals For the Ninth Circuit

BRIEF FOR THE DRUG POLICY ALLIANCE AND

THE CAMPAIGN FOR NEW DRUG POLICIES

AS AMICI CURIAE SUPPORTING RESPONDENT

DANIEL N. ABRAHAMSON DAVID I. GOLDBERG

Drug Policy Alliance Counsel of Record

Office of Legal Affairs 99 Hudson Street. 8th FI.

819 Bancroft Way New York, NY 10013

Berkeley, CA 94710 (212) 334-8813

(510) 229-5212

Attorneys for Amici Curiae

TABLE OF CONTENTS

Table of Authorities ................... Sorte ee

ED ss 9 d's Cede eh bes Sen eoenuens

EE ‘odd nekwune seaveususadevewees

ARGUMENT

I. The Constitution Requires and The Nation

Benefits From Open and Unhindered Discussion

eT ED kb dm canvcevecenccersusves

A. The “Bad Tendency” Theory of

Censorship Offends Constitutional

PE iccenakest duce even baneees ous

B. The Current Discussion Of Drug Policy

Reform Is Tied Inextricably to Principles

of Self-Government First Principles ..........

Il. High School Students Are And Should Be Full

Participants In the Policy Discussion .............

Ill. The “Special Characteristics” of The Public School

Forum Do Not Supply Authority For Punishing

Frederick’s Expression of A

Government-Disfavored View ..................

A. Frederick Was Speaking Publicly,

As A Citizen, In A Public Forum ............

B. The Court’s “Student Speech” Decisions

Do Not Confer Sweeping Powers Of

Viewpoint-Based Suppression ...............

IV. Society's Unquestioned Interest in Curtailing

Youth Drug Abuse Does Not Support The

Punishment Imposed Here ..................05. 27

A. The Suppression Here Bears No

Real Relationship To Preventing Drug Abuse .. 27

B. Well-Intended Suppression of Students’ Drug-

Related Speech Is Inimical To The Asserted

Prevention Interest .................ceecec- 29

I ek ce ae ee a eet 30

il

TABLE OF AUTHORITIES

Cases.

44 Liquormart, Inc. v. Rhode Island,

DEE ee PEED hc 6b abe dnseccetecnctevecva 28

ACLU v. Mineta, 319 F. Supp. 2d 69

RCE ¢iveeesevukddeseneevantsees 14,23

Ambach v. Norwick, 441 U.S. 68 (1979) .............. 22

Arkansas Educ. Television Comm'n v. Forbes,

Fe UE oo bac Ketan vecsevsowevaccs 19

Austin v. Mich. Chamber of Commerce,

SP GED 66d ecccusccpesdasvaves’s 17,21

Bartnicki v. Vopper, 532 U.S. 514 (2001) ............. 28

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) .. 4,23, 24

Board of Educ. y. Earls, 536 U.S. 822 (2002) . 16, 22, 27, 29

Bolger v. Youngs Drugs Prod. Corp.,

EE £00 ne hdedeeeeneeeuecavecnss 29

Bond v. Floyd, 385 U.S. 116 (1966) ...............8.0. 6

Boos v. Berry, 485 U.S. 312 (1988) ..............005. 19

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) .... 20

Brandenberg v. Ohio, 395 U.S. 444 (1967) ............. 6

iil

Brown v. Louisiana, 383 U.S. 131 (1966) ............ 21

Buckley v. Valeo, 424 U.S. 1 (1976) ......... 0.65005. 25

Burson v. Freeman, 504 U.S. 191 (1992) ............. 19

Carey v. Brown, 447 U.S. 455 (1980) ................ 21

Chandler v. Miller, 520 U.S. 305 (1997) ............ 29

Cincinnati v. Discovery Network, 507 U.S. 410 (1992) .. 21

Cornelius v. NAACP LDF, Inc., 473 U.S. 788 (1985) .... 19

Davis v. Monroe Bd. of Educ. .........6 020 c eee 22

Edwards v. Aguillard, 482 U.S. 578 (1987) ........... 26

First Nat'l Bank of Boston v. Bellotti,

SE EE. ik daneteces<é04e+0000ne08 21

Gitlow v. New York, 268 U.S. 652 (1925) ............. 7

Gonzales v. Raich 545 U.S. 1, 42 (2005) ........... 10, 11

Gonzales v. O Centro Espirita Beneficente U.D.V.,

Sa Gs CE EE ven coccccannescecnecs 12,14

Greater New Orleans Broad. Ass'n v.

United States, 527 U.S. 173 (1999) ........... 21, 28

Hague v. CIO, 307 U.S. 496 (1939) ...........2004.. 19

iv

Hazelwood vy. Kuhlmeier, 484 U.S. 260 (1988) ...... 19, 22

Hurley v. Irish-American Gay, Lesbian &

Bisexual Group, 515 U.S. 557 (1995) ...... 19, 20, 25

Island Trees School Dist. v. Pico, 457 U.S. 853 (1982) .. 26

Lawrence v. Texas, 539 U.S. 558 (2003) ............... 8

Lorillard Tobacco Co. v. Reilly,

Sap as SPD 44 i i caeensieces come passim

LSC v. Velazquez, 531 U.S. 533 (2001) ........... 22, 23

Meyer v. Nebraska, 262 U.S. 390 (1923)........... 25, 26

Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940) 25

Morrison v. Olson, 487 U.S. 654 (1988) ............. 14

NAACP vy. Claiborne Hardware, 458 U.S. 886 (1982) .... 6

NAACP vy. Alabama ex rel. Flowers,

Dee Cas BEEN + kv kd eewustises nie 26

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)... 12

Noy v. State, 83 P.3d 545 (Alaska Ct. App. 2003) ....... 12

Plyler v. Doe, 457 U.S. 202 (1982) ...............0.. 22

Police Dept. of Chicago v. Mosley,

Ge aa DR ROPTED vosncavccdeuccidecevesvurun 21

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ........ 12, 16, 25

Ravin v. State, 537 P.2d 494 (1975)... 0... cee ae 12

Rosenberger v. University of Virginia,

Ee cccececeeseescccccscces 20, 21

Roth v. United States, 354 U.S. 476 (1957) .. 2... 6.6... 8

San Diego v. Roe, 543 U.S. 77 (2004) 2... 0... 6 cee. 17

Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) ... 19

Schenck v. United States, 249 U.S. 47 (1919) ........... 8

Texas v. Johnson, 491 U.S 397 (1989). ............ 12, 24

Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 16

Tinker v. Des Moines Ind.

Community School Dist., 393 U.S. 503 (1969) .. passim

United States v. Grace, 461 U.S. 171 (1984)...... 19,20,21

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..... 24

Vashington v. Glucksberg, 521 U.S. 702 (1997) ........ 8

West Virginia Bd. of Educ. v. Barnette,

EE be ctncdaceecnseeessens passim

Whitney v. California, 274 U.S. 357 (1927) ...... 8, 26, 28

vi

Legislative And Administrative Materials

y kT | | POPSET TeTT TTT TTT Te Te Tree 16

Cal. Health & Safety Code § 124960(d) ....... oleasee 1]

Rev. Code Wash. § 69.50.412(5) .............55. ‘<<

Alaska Dept’t of Educ. & Early Development,

Content and Performance Standards for

EN cs bv oeinnneansccedusean cen 27

Other Authorities

G.A.O. Rep. No. GAO-03-172R, Youth Illicit

Drug Use Prevention: DARE Long-Term Evaluations

and Federal Efforts to Identify Effective Programs . 17

G.A.O. Rep. No. 06-818, Contractor ’s National

Evaluation Did Not Find That the Youth

Anti-Drug Media Campaign Was Effective

in Reducing Youth Drug Use (Aug. 25, 2006) ...... 17

Satcher, Evidence-Based Findings on the Efficacy

of Syringe Exchange Programs: An Analysis

from the Assistant Secretary for Health and

Surgeon General of the Scientific Research

Completed Since April 1998 (2000) ............. 15

Simmons, Children of Incarcerated

Parents 3 (Cal. Research Bureau 2000) ........... 16

vii

U.S. Sentencing Commission, Report to

the Congress: Cocaine and Federal

SPEED 6 cccccéecurcesevsccsts 14

President George W. Bush,

Address to Armed Forces Wives’ Luncheon

DT ,kscedtdne sekunnewahenendends 26

BERNSTEIN, ALL ALONE IN THE WORLD:

CHILDREN OF THE INCARCERATED (2006) .......... 16

CHAFFEE, FREE SPEECH IN THE UNITED STATES (1941). ... 9 -

CURTIS, FREE SPEECH, “THE PEOPLE’S DARLING

PRIVILEGE”: STRUGGLES FOR FREEDOM OF

EXPRESSION IN AMERICAN HISTORY (2000) .... 6,9, 10

GRABER, DRED SCOTT AND THE PROBLEM OF

CONSTITUTIONAL EVIL(2006) ................05. 10

INST. OF MEDICINE, MARIJUANA AND MEDICINE:

ASSESSING THE SCIENCE BASE (1999) ......... 13, 15

KYVIG, REPEALING NATIONAL PROHIBITION (2000) .. 8, 11

LEVINE, FREEDOM’S CHILDREN (1993) ............... 16

MILLER, ARGUING ABOUT SLAVERY, THE GREAT

BATTLE IN THE UNITED STATES CONGRESS (1996) .. 10

Ballot Pamphlet, “Argument Against [California]

PY CEE oncuecarhubentosedoses. 17

Vili

Brown, Listen to the Kids: When It Comes

to Drug Education, Students Confirm

What Research Says, AM. SCHOOL

i cnausshecebsndeeennsuouns 17

Center For Science In the Public Interest,

Liquid Candy, How Soft Drinks Are Harming

Americans’ Health (2005) ............02200005. 20

Drug Policy Alliance, State of the States,

Drug Policy Reforms: 1996-2002 (2003) .......... 10

Partnership For a Drug-Free America,

The Wrong Message of Legalizing

Illicit Drugs (Aug. 18, 1994) ...............244. 12

Skager, Beyond Zero Tolerance:

A Reality-Based Approach to Drug Education

and Student Assistance 4-10 (2006) .............. 30

Brief for Petitioner, Gonzales v.

O Centro Espirita Beneficente U.D.V.,

U.S. S. Ct. No. 04-1084 (July 2005) ............. 12

Editorial, “Think Outside The Box,

Decriminalize Marijuana,”

Juneau Empire, Jan.1,2007 ...............445. 14

Friedenauer, “Inspired by an Unsung Hero,”

Fairbanks News-Miner, Jan. 21,2007 ............ 27

“Lawmakers OK Clean-Needle Bill,”

Newark Star-Ledger, Dec. 12,2006 ............. 1]

ix

Stockton, “Marijuana Vote Sparks

Passion on Both Sides,”

Juneau Empire, Oct. 29,1998 ...........2 00055.

Verhovek, “Alaska’s Voters to Decide On Legalizing

Marijuana,” N.Y. Times, Oct. 10,2000 ...........

Zernike, “Anti-Drug Program Says It Will

Adopt A New Strategy,” N.Y. Times, Feb. 15,2001. .

STATEMENT OF INTEREST’

The Drug Policy Alliance (DPA) is dedicated to broadening

the public debate over drug use and regulation and to advancing

realistic policies, grounded in science, compassion, public

health, and respect for human rights. A non-profit, non-partisan

organization with more than 20,000 members and active

supporters nationwide, the Alliance has played a central role in

the movement for drug law reform in this country, raising

public awareness of the inadequacies of current measures and

identifying and galvanizing support for promising alternatives.

The Alliance has a core, abiding commitment to preventing

adolescent substance abuse and assuring that young people who

develop drug problems receive proper assistance. In recent

years, the Alliance has worked with government officials,

parents’ groups, and experts to develop effective and realistic

prevention strategies and advocate for proven interventions.

The Campaign for New Drug Policies (CNDP) is a

non-profit organization devoted to reforming State policies

toward illicit drugs, with an emphasis on healthcare responses

to drug-related problems. A forerunner organization,

Americans for Medical Rights (AMR), now a project of CDNP,

was chartered to advocate for the legal, medical use of

marijuana, and through their advocacy efforts, CNDP and AMR

have advanced enactment of ballot measures in 12 States and

the District of Columbia.

As participants in the earnest and often emotionally-charged

debate about drug policy reform — and frequent critics of

government policies and enforcement efforts -— Amici are

deeply concerned that this case be decided consistently with the

First Amendment’s core commitment to public discussion

"The parties have consented to the filing of this brief. It was not

authored in any part by counsel for a party, and no one other than Amici and

their counsel made a monetary contribution for its preparation or submission.

2

SUMMARY OF ARGUMENT

Although the incident giving rise to this case may seem

trivial, the First Amendment principles that have now been

drawn into question are not. In an effort to uphold punishment

imposed here for Respondent’s nondisruptive expression in a

public forum, Petitioners advance a fateful First Amendment

argument: that because federal law proscribes marijuana, any

expression that might have the effect of weakening its

audience’s compliance with the statutory prohibition — whether

a “BONG HiTS 4 JESUS” banner, one that says “legalize

marijuana,” or one that lays out a more elaborate case against

existing law — is punishable based on these “bad tendencies.”

This theory has been decisively repudiated by this Court

before and must be here. As landmark opinions have explained,

a “bad tendencies” rule systematically disadvantages those who

criticize existing laws, thereby entrenching the unexamined

status quo, and it has no place in a system of government based

on popular sovereignty and public discussion. This realization,

however, did not come easily; the theory has a long and

notorious history — and was at the center of the bitter

controversies over the right to speak against slavery that helped

impel the Nation toward Civil War.

The commitment to resolving matters through open public

debate — and appreciation for the dangers of viewing speech

suppression as an auxiliary means of law enforcement — are of

central relevance to the subject matter of this case. In recent

years, citizens across the country have been engaged in a

serious, robust and wide-ranging discussion about the Nation’s

present approach to drug use and abuse. Voters and legislators

have debated whether marijuana possession should remain

regulated under the criminal law; whether laws should exempt

drug use for medical or religious purposes; whether laws

mandating lengthy sentences for nonviolent offenders are

sensible and fair; whether rules impeding the availability of

effective pain medications to individuals with chronic and

3

intractable pain should be changed; and whether the need to

combat infectious disease warrants changing laws intended to

prevent drug users from obtaining sterile syringes. Many of

these measures have been enacted, often with broad citizen

support, typically over the vocal opposition of government

authorities, and almost always after long and intense debate.

This is not the occasion to argue the merits of the reform

positions on various policies, but rather to highlight the radical

incompatibility of Petitioners’ position with the Constitution’s

core commitment to open debate. When policy reforms are

discussed, opponents in law enforcement invariably claim that

measures will have unintended consequences and weaken

compliance with other laws. To date, however, such claims,

advanced in the forum of public opinion, have been subject to

scrutiny and counter-argument. Under a “bad tendencies”

theory, assertions that have been matters for disproof or rebuttal

become a valid basis for silencing the disfavored speech.

Nor is this danger particular to debates over drug control

laws. Those who seek to change laws outlawing physician-

assisted suicide, gun controls, or constitutional abortion

protection necessarily believe — and seek to persuade others —

that the existing laws are unwise or unjust. Petitioners’ theory

would have condemned advocacy of the 21st Amendment as

readily as it condemns present reform proposals.

To be sure, the expression in this case — a banner bearing

words whose precise meaning remains elusive - was not a

closely reasoned law reform argument. The logic of

Petitioners’ position does not admit a distinction on that basis.

On the country, a statement cogently laying out scientific data

inconsistent with the government’s harm message could have

a greater effect than did Frederick’s banner display as

presumably would a “legalize marijuana” banner exhibited by

a revered recent JDHS graduate. Indeed, the United States as

Amicus does not shy away from this implication, and expressly

disavows any suggestion that political advocacy should be

4

exempt from tendency-based suppression.

Petitioners do not claim here that government could punish

the speech by non-student advocates of drug policy reform.

Rather, citing Tinker and Fraser, they claim authority “only” to

stop public high school students from speaking on the

government-disfavored side of this debate. By their own terms,

those decisions rest exclusively on the need to adapt First

Amendment rules to the special circumstances of the public

school environment — not, as Petitioners suggest, that the

freedom of belief and expression the Amendment protects do

not attach until the age of majority. Both history and precedent

rebel against that claim. Students have been active participants

in urgent national debates over war and civil rights, as they are

in the discussion of drug policy reform, and, given their distinct

perspective on many of the most important issues, society has

a strong interest in hearing from them.

The rules announced in Tinker and Fraser simply have no

application to Frederick’s First Amendment claims because, as

we argued (unsuccessfully) as amicus curiae below,

Respondent was not speaking as a student in a school-provided

forum. He was addressing the public from a public sidewalk,

a forum where, under this Court’s precedents, freedom of

expression is given its most comprehensive protection. There

is no question that if any of the other people standing in that

same place had displayed an identical banner, any attempt to

suppress their speech would be judged — and condemned —

under an undiluted strict scrutiny standard. There is no valid

First Amendment reason why Frederick, present with them by

right, wholly independent of his status as a public high student

— could more readily be silenced.

But even if the Court were to allow Petitioners’ actions an

exception from the ordinary rules governing censorship in a

public forum, the “school speech” decisions recognize no

permissible basis for the punishment here. Contrary to

Petitioners’ rereading, Tinker and Fraser recognize that

5

suppressing speech based on disapproval of the idea expressed

— viewpoint discrimination — to be no less serious “inside the

schoolhouse gate” than outside. As this Court’s landmark

public school First Amendment decision, West Virginia Bd. of

Educ. v. Barnette, makes clear, whether or how “central”

Petitioners’ drug prevention is to their “mission” does not

control; school authorities’ unquestioned power to teach

students about the dangers of illegal drugs or the dangers of

global warming — does not include the power to suppress

expression by students who believe otherwise.

While Petitioners and Amici call the Court’s attention to the

vastness, complexity and seriousness of the problem of youth

drug abuse, implying that adherence to First Amendment

principles — the remedy for speech is “more speech” — in these

circumstances would be an unaffordable luxury, any such

“special needs” exception should be rejected. There are strong

reasons for adhering to First Amendment doctrine — developed

in war, civil emergency, and upheaval — in any circumstances,

but the conflict posited here is not authentic. No searching

scrutiny is needed to see that the only purpose the power

Petitioners’ claim can actually serve is as a signal of the

steadfastness of their commitment to the anti-drug cause; it

bears no reasonable relationship (save for, perhaps, an inverse

one) to actual drug abuse prevention. Whether or not “pro-

drug” messages “lead to” drug abuse and even if Respondent’s

inscrutable banner could be so described, the government

would have scant authority to suppress other, similar (or more

“incendiary”) banners visible to these high school students, and

none at all to interfere with the many other messages that

Petitioners themselves acknowledge “bombard” teenagers.

Under First Amendment law, the patent inefficacy of

censorship in advancing the governmental interest settles its

unconstitutionality. But the reasons for rejecting Petitioners’

argument are not confined to its First Amendment dangers. At

least as important, censorship here is a profoundly bad drug

/

6

abuse prevention strategy. To legislators, school authorities,

and parents concerned about youth drug abuse, every message

the government can send that drugs are harmful and every

contrary one it can suppress may seem a step in the right

direction, but experience belies that intuition. Because schools

cannot talk to students through a “closed circuit”; because

students receive so much other drug-related information, an

alarmist approach, which lacks candor and credibility, does not

work.

This case, however, is not about what public school

authorities should or may say — but rather what they may

suppress, and a “drug abuse prevention” policy that aims to

inhibit students from expressing what they actually know,

believe, or think about drug-related matters, in favor of what the

government wants to hear, is doomed.

ARGUMENT

I. The Constitution Requires and The Nation Benefits From

Open and Unhindered Discussion of Drug Policy Reform

A. The “Bad Tendency” Theory of Censorship Offends

Constitutional First Principles

Although the Briefs of Petitioners and their Amici

repeatedly describe this case as involving punishment for

“advocating” violation of the federal drug laws, see Pet. Br.8,

the expression in this case bears no resemblance to the speech

that has given rise to this Court’s incitement case law, see, e.g.,

NAACP vy. Claiborne Hardware, 458 U.S. 886, 928 (1982);

Bond v. Floyd, 385 U.S. 116 (1966), and the theory of

censorship they assert goes far beyond what has been held

permissible even in those circumstances.’ Frederick’s

expression —a banner bearing a cryptic message that Petitioners

have described as a “whimsical espousal[] of illegal drug use”

'The Court has held that speech unequivocally advocating unlawful

action is protected, subject to a narrow and stringent set of exceptions. See

Brandenberg v. Ohio, 395 U.S. 444, 447 (1967) (unlawful action must be

serious, imminent, and highly likely).

7

and “at best * * * a parody of the seriousness with which the

school takes its mission to prevent use of illegal drugs.”

C.App.Br. at 21 — was “incitement” only in the sense that

“le}very idea is an incitement,” Gitlow v. New York, 268 U.S.

652, 673 (1925) (Holmes, J., dissenting).

What Petitioners here call “illegality promot[ion],” Br. 15,

reduces to a claim that (1) marijuana use is prohibited under

federal law; (2) Frederick’s inclusion of a slang and seemingly

sympathetic drug reference is at odds with that law’s underlying

premise, i.e., that drug use is “harmful and wrong,” and (3)

statements of this character could comfort those who might

smoke marijuana, in violation of the prohibition. That

Respondent did not intend the message to incite others to

unlawful action, Petitioners maintain, does not diminish their

power to suppress it, nor would it matter that the banner

contained a more explicitly political appeal or only truthful,

factual information.’

The idea that government officials are empowered to punish

expression on these broad terms has a long history, see CURTIS,

FREE SPEECH, “THE PEOPLE’S DARLING PRIVILEGE”:

STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN

HISTORY (2000) 10-12, but it is one whose dangers to core

constitutional values this Court has come to emphatically

repudiate.

As the efforts of the parties and courts below make clear, divining what

the message meant is no easy matter; apparently, many who observed the

banner in January 2002 found it unintelligible. But there is agreement that

Frederick’s intended audience were those watching on television. Pet. App.

62a — not the high schoo! students whose noncompliance with the law he is

charged with “inciting,” and the only “effect” Petitioners have even

attempted to connect to the banner was an instance of pro-drug graffiti.

For his part, Respondent testified that inclusion of a reference to drugs

(as against some other controversial topic) was in some sense fortuitous.

The primary purpose of the exercise, he explained, was to “reassure myself

that this is America. I have a Bill of Rights. I have the right to do something,

whether (] somebody finds it offensive or somebody doesn’t agree with it.”

Punishing those who criticize laws is contrary to what

Justice Jackson described as the “American concept of the

State,” — “where [a]uthority * * * is to be controlled by public

opinion, not public opinion by authority,” Barnette, 343 U.S. at

641. It gives would-be censors vast power, see, e.g., Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 580 (2001) (Thomas, J.,

concurring in part) (“if speech may be suppressed whenever it

might inspire someone to act unlawfully, then there is no limit

to the State’s censorial power”), and, because every

“denunciation of existing law tends in some measure to increase

the pre vability that there will be violation of it,” Whitney v.

California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring),

it operates to the systematic disadvantage of those seeking to

persuade fellows citizens to change the status quo. See Roth v.

United States, 354 U.S. 476, 484 (1957) (the First Amendment

“was fashioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the

people”).

As Judge Kleinfeld’s opinion below was quick to recognize,

this theory does not limit itself to speech critical of the Nation’s

drug \|aws. What Washington v. Glucksberg, 521 U.S. 702

(1997), described as the “earnest and profound debate about the

morality, legality, and practicality of physician-assisted

suicide,” id. at 735, has unfolded in an environment where

criminal prohibition is a!most universal, id. at 711-16, and the

recognition that this “debate [should] continue * * * in a

democratic society,” id. at 735 was made with full awareness

that such discussion — by exposing apparent weaknesses in the

justifications for current prohibitions — could lead to

noncompliance. The same might be said about arguments that

federal gun control laws violate the Second Amendment;

arguments against federal abortion clinic access statutes; those

favoring repeal (prior to Lawrence vy. Texas, 539 U.S. 558

(2003)) of laws criminalizing homosexual sodomy; or the 1932

Democratic Party platform’s condemnation of national alcoho!

prohibition. See KYVIG, REPEALING NATIONAL PROHIBITION

9

(2000) at 157.2. And Tinker upheld expression that might

readily have been described as “advocating” noncompliance

with the law requiring military service. Cf. U.S. Br. 7. Indeed,

virtually every basis for arguing that a law should be changed

— that it is unjust, philosophically unsound, that it violates the

Constitution or some other, higher law, that it is hypocritically

or haphazardly enforced — can be said to affect some listener’s

readiness to comply.

While the wrongness of the “bad tendencies” theory seems

so self-evident as to make such dangers seem only theoretical,

the judicial opinions famed for exposing its errors were dissents

and concurrences, delivered at a time not long after the Court

upheld the conviction of Charles Schenck, for sending a flyer to

World War I era draftees with the Thirteenth Amendment

printed on one side and a denunciation of war printed on

another, see 249 U.S. 47 (1919), and when

Citizens were sentenced to prison terms for telling a woman

who was knitting socks for soldiers that no soldier would

ever see them * * * for urging broader exemptions for

conscientious objectors * * * and for circulating a pamphlet

arguing that Christ’s principles condemned war.

CURTIS, FREE SPEECH at 390 (summarizing cases collected in

CHAFFEE, FREE SPEECH IN THE UNITED STATES (1941)).

*The Court of Appeals made a similar point in rejecting Petitioners’

claimed power to punish “mission-undermining” speech.

All sorts of missions are undermined by legitimate and protected speech

~a school’s anti-gun mission would be undermined by a student passing

around copies of John R. Lott’s book, More Guns, Less Crime; a

school’s anti-alcohol mission would be undermined by a student

e-mailing links to a medical study showing less heart disease among

moderate drinkers than teetotalers; and a school’s traffic safety mission

would be undermined by a student circulating copies of articles

showing that traffic cameras and automatic ticketing systems for cars

that run red lights increase accidents.

Pet.App. 11a (footnote omitted).

10

These wartime prosecutions do not represent an historical

aberration or even the high water mark of the “bad tendencies”

theory. During the middle decades of the Nineteenth Century,

Southern States relied on an increasingly aggressive version of

the theory to thwart expression of anti-slavery opinion and

prevent debate over even modest measures, on the theory that

such discussion tended to undermine bondsmen’s acceptance of

their “lawful” lot. See CURTIS at 260-99; see also GRABER,

DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL

232-34 (2006); W. MILLER, ARGUING ABOUT SLAVERY (1996).

This suppression provoked outrage in the North, where

accusations that principles of republican government had been

supplanted by “Slave Power,” and these crises over free speech

fueled hostilities that took the Nation into Civil War.

B. The Current Discussion Of Drug Policy Reform Is Tied

Inextricably to Principles of Self-Government

These experiences and lessons have resonance in this case.

As this Court’s recent decisions give some indication, the

wisdom, justice, and efficacy of our Nation’s drug laws is the

subject of a thoughtful, robust debate at every level of

government and throughout the country. See Gonzales v. Raich

545 U.S. 1, 42 (2005) (O’Connor, J, dissenting) (describing

California’s Compassionate Use Act as “exempliffying] the role

of States as [policy] laboratories” pursuing “novel social and

economic experiments). A non-exhaustive count identified

more than 150 notable reforms enacted at the State level alone

(in 46 different States) between 1996 and 2002 — 17 of which

became law by voter initiative. See Drug Policy Alliance, State

of the States, Drug Policy Reforms: 1996-2002 (2003). The

number of changes at the local government level is far larger,

and many measures that did not become law garnered large

citizen and legislative support. These continue.*

‘Petitioners’ Amici are profoundly wrong to imply (D.A.R.E.Br.18n.32)

that these developments are inconsequential, because marijuana remains

federally prohibited. Although State measures yield in instances of conflict,

In addition to measures removing State law barriers to

medically-recommended marijuana, States have enacted

measures reforming mandatory minimum sentencing laws,

making drug treatment more widely available, removing

barriers to effective pain medications for those suffering from

intractable pain, see, e.g, Cal. Health & Safety Code §

124960(d),° and modifying laws relating to sterile syringes, e. g.,

Rev. Code Wash. § 69.50.412(5); see “Lawmakers OK

Clean-Needle Bill,” Newark Star-Ledger (Dec. 12, 2006)

(describing New Jersey legislation culminating “more than a

dozen years and countless hours of impassioned debate,”

explaining that “[f]or 13 years, lawmakers have wrestled with

the Jegal and moral paradox of giving addicts syringes to use

illicit drugs,” but that “scores of scientific studies,” cited by

proponents had eventually carried the day).

Many of these measures have been enacted by popular

initiative, with millions of Americans casting ballots on the

reform side — with many prominent elected officials and

medical and public health organizations spearheading support

for reforms. Millions of citizens have also voted or spoken

U.S. Const art. V1, States are sovereigns, and whether their non-preempted

laws proscribe or permit conduct is of vast legal and practical significance.

In addition, the censorship here was imposed by those acting under color of

Alaska, not federal, law, and that State has recognized a fundamental right

to marijuana use by adults (including 18 year-old high school students like

Frederick) in the privacy of the home. Cf. Lorillard, 533 U.S. at 564 (First

Amendment analysis must take account that products advertised were legal

for adult use)

Through a broader lens, discussion and experience at the State level can

profoundly affect changes in federal law. See, e.g, KYVIG, REPEALING

NATIONAL PROHIBITION at 68-69 (describing importance of State-level

referenda condemning Prohibition as precursors to 21st Amendment).

*Indeed, these particular reforms _ result of efforts by maverick health

professionals who endured insults that they were no better then “drug

pushers” — have come to play a central role in the debate over physician-

assisted suicide. See, e.g, 521 U.S. at 747 (Stevens, J., concurring in

judgment) (“Encouraging the development and ensuring the availability of

adequate pain treatment is of utmost importance”).

12

against these reforms, cf. Raich, 545 U.S. at 57 (O’Connor, J.,

dissenting) (observing that “If I were a California citizen, I

would not have voted for the medical. marijuana ballot

initiative”) — and in many places, they have encountered

outspoken opposition from government officials (and federal

law enforcement authorities, especially), who frequently claim

that any step away from prevailing approach undermines the

law’s anti-drug “message.”

Alaska, as Judge Kleinfeld’s opinion noted, has been the

locus of one the most intense and long-running of these citizen

debates. See Pet.App.6a n.4 (explaining that “[m]essages about

marijuana have a degree of political salience” there). By the

time Frederick unfurled his banner, Alaskans had been arguing

with one another about the legal status of marijuana for more

than a quarter century. The State Supreme Court’s decision in

Ravin v. State, 537 P.2d 494 (1975), holding that criminal

punishment for possession of a small amount of marijuana in

one’s home violated the State Constitution’s right to privacy

prompted a repeal effort that included failed constitutional

amendments and a successful — but ultimately ineffectual —

ballot initiative, see Noy v. State, 83 P.3d 545 (Alaska Ct. App.

2003). In 1998, the year Frederick entered high school,

Alaskans debated and approved a medical marijuana ballot

measure, and two years after that, the State’s voters were

presented — and rejected — a sweeping decriminalization ballot

measure. See Verhovek, “Alaska’s Voters to Decide On

*Thus, last Term, in Gonzales v. O Centro Espirita Beneficente U.D.V.,

the United States argued that a RFRA exemption would “increase] public

familiarity with hoasca, * * * generat(e] public misperceptions about the

safety of DMT tea, and fuel[} the development of a market for hoasca,” Pet.

Br. No. 04-1084 at 40 n.30. And the official ballot pamphlet, “Argument

Against [California] Proposition 215” asserted that it would “damage * * *

efforts to convince young people to remain drug free. It sends our children

the false message that marijuana is safe and healthy.” See also Partnership

for A Drug-Free America, The Wrong Message of Legalizing Illicit Drugs

(Aug. 18, 1994) (“Legalization sends [a] message * * * erodes the anti-drug

attitudes of our youth and [encourages] them to try and use illegal drugs”).

13

Legalizing Marijuana,” N.Y. Times (Oct. 10, 2000).

It would be mistaken to observe that the enigmatic message

on the banner was not a closely reasoned argument for law

reform and that its suppression poses no threat to more earnest

appeals. The First Amendment’s limitations are not limited to

speech by “philosophers,” Texas v. Johnson, 491 U.S. at 421

(Kennedy, J., concurring); see also R.A.V. v. St. Paul, 505 U.S.

377 (1992), and Petitioners’ own characterization confirms that

they discerned a political aspect to the message. See

Ct.App.Br.21 (calling banner “at best, a parody of the

seriousness with which the school takes its mission to prevent

use of illegal drugs” and describing Frederick as deserving of

punishment for “belittl[ing]” administrators’ pursuit of their

“critical [anti-drug] mission”); New York Times Co. v. Sullivan,

376 U.S. 254, 270 (1964) (restraints on “criticism of

government and public officials are [inconsistent] with the First

Amendment”); see also Pet.App.6a n.4 (noting that statements

about marijuana “might be understood as political advocacy”).

Even more important, the logic of Petitioners’ position does

not suggest a distinction between “whimsical” banners and

those which lay out a reasoned case for drug reform. On the

contrary, if potential to “undermine” the government’s anti-drug

message is the source of the power to censor, it is unimaginable

that a banner urging that voters “legalize marijuana” in the next

election would be protected — or a pamphlet that summarized

the Institute of Medicine’s findings that “marijuana users

appear to be less likely to [become dependent] than users * * *

of alcohol and nicotine{}, and marijuana dependence appears to

be less severe than dependence on other drugs”; that “marijuana

use * * * does not appear to be a gateway drug to the extent

that it is the cause or even * * * the most significant predictor

of serious drug abuse,” or that report’s rejection of the view that

“because [marijuana] is an illegal substance, * * * any use of

marijuana [is] substance abuse.” See MARIJUANA AND

MEDICINE: ASSESSING THE SCIENCE BASE (1999) (“IOM

14

REPORT”) 86, 98, 101. A speech referencing this Court’s recent

observation that allowing peyote use by Native American

Church members belied the government’s assertion that “any

Schedule I substance is in fact always highly dangerous in any

amount no matter how used,” O Centro, 126 S. Ct. 1211, 122

(2006), would be suspect — as would one referencing the U.S.

Sentencing Commission’s observation that “the negative effects

from prenatal exposure to cocaine are very similar to those

associated with prenatal tobacco exposure and less severe than

the negative effects of prenatal exposure to alcohol,” Report to

the Congress: Cocaine and Federal Sentencing Policy 100

(2002) —or one reading from a recent Juneau Empire editorial

entitled, “Think Outside The Box, Decriminalize Marijuana”

declaring that “the reality is that Prohibition did not work and

the effort to stamp out marijuana is not working either.”

Despite all the government's efforts, it is available to just about

anyone, in any part of the nation.” (Jan. 1, 2007).

These are not “slippery slope” concerns: “[t]his wolf comes

as a wolf,” Morrison v. Olson, 487 U.S. 654, 699 (1988)

(Scalia, J., dissenting). Rather than suggest that expression

more explicitly addressing a political matter, such as a drug

legalization ballot initiative, would somehow be exempted,

despite its “drug promoting” tendencies, the United States

asserts (Br. 27) “‘legalize’ is not a magic word that clothes

speech advocating drug use from school discipline. And

students do not have a First Amendment right to display

‘legalize marijuana’ banners * * * at events like the one at issue

here”) (emphasis in original); compare ACLU v. Mineta, 319 F.

Supp. 2d 69, 78 (D. D.C. 2004) (“a government regulation that

directly placed prohibitions on speech advocating the

legalization of marijuana, but allowed the opposite point of

view * * * unquestionably would be unconstitutional”).’

"Although emphasizing “banners” seems to imply that there was

something objectionable about the form of Frederick’s expression,

punishment was not imposed pursuant to a “no banners” policy, but rather

an anti-drug policy.

15

There is no reason to expect that government officials

would be reluctant to wield the “bad tendencies” theory against

reform arguments. As noted above, law enforcement

authorities opposing drug law reforms in the political arena

almost always do so on the ground that efforts to discourage

improper use will be undermined, see n.6, supra (collecting

examples), or by casting aspersions on the “agenda” of those

who criticize the status quo.

But such claims, when made in public debate, may be met

with reasoned, evidence-based counterargument. See, e.g.,

IOM REPoRT at 104 (finding “no convincing data to support

[the] concern” that permitting medical use of marijuana would

lead to an increase of marijuana use in the general population,

noting and “no evidence that the medical marijuana debate has

altered adolescents’ perceptions of the risks associated with

marijuana use”); Satcher, Evidence-Based Findings on the

Efficacy of Syringe Exchange Programs (2000) (Surgeon’s

General’s finding of “conclusive scientific evidence that

syringe exchange programs * * * do[] not encourage the use of

illegal drugs”); IOM REPORT at 102 (observing that

“widespread concern among physicians and medical licensing

boards that liberal use of opiates would result in many addicts

* * * * [has] proven unfounded; it is now recognized that fear

of producing addicts through medical treatment resulted in

needless suffering among patients with pain as physicians

needlessly limited appropriate doses of medications”). Cf.

Zernike, “Anti-Drug Program Says it Will Adopt a New

Strategy,” N.Y. Times (Feb. 15, 2001) (“DARE has long

dismissed criticism of its approach as flawed or the work of

groups that favor decriminalization of drug use. But the body

of research had grown to the point that the organization could

no longer ignore it. In the past two months alone, both the

surgeon general and the National Academy of Sciences have

issued reports saying that DARE’s approach is ineffective”).

16

II. High School Students Are And Should Be Full Participants

In the Policy Discussion

Petitioners’ offhand suggestion (Br.19 n.4) that the

“marketplace of ideas” protected by the First Amendment is

open only to those who have attained the age of majority (a

notion that would not augment their power over the 18-year old

respondent here), is refuted not only by 7inker (which referred

to the “First Amendment rights” of the 13, .., and 16-year olds

plaintiffs), but also by R.A.V. and Barnette.

Whatever may have been the case in England in 1859,

constitutional protection — and participation in public affairs —

by students of high school age is and long has been the norm on

these shores. See Tinker; LEVINE, FREEDOM’S CHILDREN 77-92

(1993) (describing 1963 “Children’s Crusade” in Birmingham,

Alabama). Students have been full and active participants in

many recent drug pu:'cy debates, — on both sides of the reform

position see Stockton, “Mc*ijuana Vote Sparks Passion on Both

Sides,” Juneau Empire (Oct. 2>, 1998) (noting that students at

Juneau-Douglas High School studen.: had formed “Juneau’s

Teens Against Ballot Measure 8 [permitting mcu:-al use]”’); Br.

Amicus Curiae, Students for Sensible Drug:Policy.

Students are distinctly affected by — and distinctly qualified

to speak about — a number of drug policies that are the subject

of intense debate, see Ear/s (linking high school activities to

drug tests); 20 U.S.C. § 1091(r)(1) (denying education aid

based on previous drug conviction), and younger people bear

especially severe collateral effects of lengthy sentencing laws.

BERNSTEIN, ALL ALONE IN THE WORLD: CHILDREN OF THE

INCARCERATED (2006); Simmons, Children of Incarcerated

Parents 3 (Cal. Research Bureau (2000) (nearly 300,000

California children have a parent incarcerated). There is a

strong First Amendment interest in assuring that views are

heard by those who decide such policies. See Thornhill v.

Alabama, 310 U.S. 88, 102 (1940) (linking freedom of

discussion to “information “appropriate to enable the members

17

of society to cope with the exigencies of their period”); Austin

v. Mich. Chamber of Commerce, 494 U.S. 652, 699 (1990)

(Scalia, J., dissenting) (noting nonprofit corporations with

“unique views of vital importance to the electorate”); cf. San

Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam) (on some

issues, “public employees are uniquely qualified to comment”).

Indeed, the Briefs of Petitioners and their Amici go far in

making this case. Accepting the paramount importance of

preventing youth drug substance abuse — and the government-

documented difficulty of crafting messages that actually

advance that interest, see G.A.O., Rep. No. GAO-03-172R,

Youth Illicit Drug Use Prevention: DARE Long-Term

Evaluations and Federal Efforts to Identify Effective Programs

2 (Jan 16, 2003) (finding “no significant differences in illicit

drug use between students who received [widely-used drug

education program] and students who did not”); G.A.O. Rep.

No. 06-818, Contractor’s National Evaluation Did Not Find

That the Youth Anti-Drug Media Campaign Was Effective in

Reducing Youth Drug Use (Aug. 25, 2006) (endorsing

conclusion that “campaign was not effective in reducing youth

drug use, either during the entire period of the campaign or

during the period from 2002 to 2004 when the campaign was

redirected and focused on marijuana use”), it is deeply

irresponsible to ignore what high school students actually think,

know, and believe, about the subject, see Brown, Listen to the

Kids: When It Comes to Drug Education, Students Confirm

What Research Says, AM. SCHOOL BOARD J., Dec. 1997, at 40

— or to punish them because officials do not like what they have

to say. See Ct.App.Br.21 (asserting that Respondent’s

“belittl[ing]” administrators’ pursuit of their “critical [anti-

drug] mission” was punishable).

lif. The “Special Characteristics” of The Public School Forum

Do Not Supply Authority For Punishing Frederick’s

Expression of A Government-Disfavored View

18

Just as this Court’s “student speech” cases do not recognize

governmental power to punish high school students’ free

expression based on their age, they do not, as the Court of

Appeals acknowledged, rest on their status as enrollees in

public-run schools. See Pet.App.5a (unconstitutionality of

punishing a “student [for] having an after-school job at a video

store that rents out Cheech and Chong tapes [or] * * * driving

a car on public streets with a ‘Bong Hits 4 Jesus’ bumper

sticker” is “easy”).

Rather, these cases recognize that the Constitution protects

students’ freedom of belief and expression inside and outside

the “schoolhouse gate,” Tinker 393 U.S. at 506; see also

Barnette, but that general First Amendment principles must be

applied in light of the “special characteristics” of the public

school forum, id.; see also id. at 512 (delimiting permissible

grounds for suppressing students’ “expressifons of] their

personal views on the school premises”) (emphasis added). The

Court of Appeals was unassailably correct to hold that these

“student speech” cases supply no authority for the viewpoint-

based punishment Petitioners imposed; its only error (albeit

harmless, under these circumstances) was in understating the

extent of First Amendment protection to which Frederick’s

expression was entitled.

A. Frederick Was Speaking Publicly, As A Citizen, In A

Public Forum

Petitioners and Amici insist (and the decision below agreed)

that, though Frederick was not “on the school premises” when

he displayed his banner, it would be error to treat “which side

of the street [he] chose to stand on” as “constitutionally

dispositive,” U.S. Br. 27 — given that the banner was visible to

JDHS students across the street, who were present at the Torch

Relay under school supervision. Accord Pet.App.6a

(“Frederick was a student, and school was in session”).

This is wrong. It is of course not uncommon in First

Amendment jurisprudence for such variables to have large

19

weight. See, e.g., Schenck v. Pro-Choice Network, 519 U.S.

357, 378-82 (1997); cf. Burson v. Freeman, 504 U.S. 191

(1992). But Respondent’s entitlement to undiluted First

Amendment protection is not based on his expression’s

occurring far enough away from a public school, but rather

because of where it did occur: in a public forum — indeed, the

quintessential such forum, a public sidewalk along a parade

route. As legions of this Court’s cases instruct, that undisputed

fact is “constitutionally dispositive”: the first task in judging a

governmental limitation on expression is to “identify the nature

of the forum” in which expression occurs, see, e.g., Cornelius

v. NAACP LDF, Inc., 473 U.S. 788, 800 (1985); Arkansas

Educ. TelevisionComm’n v. Forbes, 523 U.S. 666, 671 (1998),

and if it is held to be “public” in character,“the government’s

ability to restrict expressive activity is very limited.” United

States v. Grace, 461 U.S. 171, 177 (1984). The Nation’s

tradition of free speech commands that a speaker who takes

to the street corner to express his views * * * should be free

from interference by the State based on the content of what

he says.

Hurley vy. Irish-American Gay, Lesbian & Bisexual Group,

515 U.S. $57, 579 (1995). Indeed, this point was highlighted

in Kuhlmeier: “|t]he public schools do not possess all of the

attributes of streets, parks, and other traditional public forums

that ‘time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and

discussing public questions’” 484 U.S. 260, 267 (1988)

(quoting Hague v. CIO, 307 U.S. 496, 515 (1939)).

Under settled law, the sidewalk’s relative proximity to the

public high school was immaterial: “public forum property

* * * will not lose its historically recognized character for the

reason that it abuts government property * * * dedicated to a

use other than as a forum for public expression,” Grace, 461

U.S. at 180; Boos v. Berry, 485 U.S. 312 (1988) (applying

public forum standards to sidewalks outside foreign embassies).

20

Nor can the presence in the audience of public high school

students, or the fact that they were present at the public event

under the school’s auspices, make “school speech” rules

control. The assembled crowd included many non-students, —

Petitioners found the message was intended “for the benefit of

television cameras covering the Torch Relay,” Pet.App.62a;

see Lorillard, 533 U.S. at 564. Visits by school groups to this

Court or to Boston’s St. Patrick’s Day parade would not

authorize censorship under the standards of the public school

setting.® Indeed, the “special * * * First Amendment

protection,” for speech in public fora, Grace, 461 U.S. at 180,

has never been grounded on the assumption that students of

high school (and younger) age do not frequent streets and parks.

These principles control Respondent’s Free Speech claim.”

Because every other person standing along side Frederick —

including a private school student, a recent graduate, or a recent

JDHS drop out — could lawfully have displayed precisely the

same banner to the same audience, so too could he. “If the

speaker[] here were not [a high school student], no one would

‘Under Hurley, the presence of students enrolled at a school committed

to teaching tolerance and respect would not have supplied a reason for

rehabilitating the inclusion mandate the Court struck down, nor could a

principal prevent a Boy Scout troop from participating, see Boy Scouts of

America v. Dale, 530 U.S. 640 (2000) — or punish a student for marching

under the Boy Scout Flag. That, in relevant respects, is this case.

Similarly, that Petitioners’ responsibility for educating students about

nutrition would presumably allow them to exclude sugar-laden soft drinks

from the cafeteria, see Center For Science In the Public Interest, Liquid

Candy, How Soft Drinks Are Harming Amer cans Health (2005), it would

not have allowed them to pull down a Coca Cola banner that sought to

associate cola drinking with a healthy lifestyle, on the ground that it was

visible to the student audience.

"There is a plain, unacknowledged tension between Petitioners’

insistence that the Court of Appeals took an insufficiently categorical

approach — by noting that the event was privately sponsored and that teacher

supervision was, in fact, lax — and their central premise that the Court need

not strictly follow its (very categorical) public forum case law in a case

involving expression that occurred in a public forum.

2)

suggest that the State could silence [his] proposed speech,”

First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 784

(1978). See Rosenberger v. University of Virginia, 515 U.S.

819, 828 (1995) (principle that “government regulation may not

favor one speaker over another” derives from the “axiom[{] that

the government may not regulate speech based on * * * the

message it conveys”). Accord Police Dept. of Chicago v.

Mosley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S. 455

(1980); Greater New Orleans Broadcasting Ass'n, Inc. United

States, 527 U.S. 173, 193 (1999) (“[e]ven under the degree of

scrutiny that we have applied in commercial speech cases,

decisions that select among speakers conveying virtually

identical messages are in serious tension with the principles

undergirding the First Amendment”); Cincinnati v. Discovery

Network, 507 U.S. 410, 428 (1993)."°

Petitioners’ attempts to analogize the circumstances here to

those of a student on an off-campus class trip fail to reckon with

'° That the expression of a student peer is said to be more persuasive

than another’s (i.e., through “peer pressure” U.S. Br. 17) would not, under

usual First Amendment rules, be a permissible ground for a speaker-based

restriction, see Austin, 494 U.S. at 695 (1990) (Scalia, J., dissenting) (First

Amendment does not allow restrictions grounded on the notion that an

individual’s “speech may be ‘unduly’ persuasive * * * or ‘unduly’ respected

(because they are clergymen)”), but the issue need not be squarely faced

here, because it is simply impossible to describe a banner, let alone a delphic

one directed at the television audience, as “pressuring” others. Cf. Board

of Educ. v. Earls, 536 U.S. 822, 841 (2002) (Breyer, J.) (noting that policy

gave “adolescents a nonthreatening reason to decline his friend’s drug-use

invitations”).

Nor is there anything “strange” about the “dichotomy” (Pet. Br. 30 n.9)

between the decision below and the Fourth Circuit’s (pre-Lorillard) decision

upholding an ordinance limiting the location of alcohol advertising, see

Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir. 1996). This Court's

cases generally give noncommercial speech greater protection than

advertising — and while advertising, by definition, “promotes” the product,

what Frederick wanted viewers to do is far from clear. Most important, a

geographic ban like the one upheld in Schmoke applies even-handedly to the

same speech — advertising. Here, a hypothetical non-student “Frederick

Joseph,” could have taken up the same banner with impunity.

22

the reason why broader First Amendment protection is afforded

in the public forum: because citizens are free to speak their

minds “‘in a place where [they] ha[ve] every right to be,””

Grace, 461 U.S. at 184 (Marshall, J., concurring and dissenting

in part) (quoting Brown v. Louisiana, 383 U.S. 131, 142 (1966))

(Opinion of Fortas, J). Frederick was not trying to speak in a

school-created forum, see Fraser, 478 U.S. at 677; his presence

on the public sidewalk, was, as a matter of fact and law,

independent of school authorities. Compare Pet.App.58a

(Policy No. 5850) (“Participation in * * * class trips is not a

right”). He was present and expressing himself, not as a student

— but as a citizen."

B. The Court’s “Student Speech” Decisions Do Not Confer

Sweeping Powers Of Viewpoint-Based Suppression

Although Respondent’s public forum speech is entitled to

full protection, the viewpoint-based censorship at issue here

fares no better under the First Amendment standards applicable

to student speech in the public schools. At the center of

''The Government's suggestion (U.S. Br. 24) that public school

students’ Free Speech rights be determined under rules applicable to

government employees likewise ignores critical dissimilarities between the

respective legal relationships. First, many public employees’ duties include

delivering government’s message, and their effectiveness in doing so can be

impaired by what they say elsewhere, see Davis v. Monroe Bd. of Educ.

(Kennedy, J., dissenting) (noting Court’s unanimity “that the school [does

not] act[] through its students”); LSC v. Velazquez, 531 U.S. 533, 542 (2001)

(when government “funds to private entities to convey a governmental

message, it may take legitimate and appropriate steps to ensure that its

message is neither garbled nor distorted by the grantee”) (quoting

Rosenberger, 515 U.S. at 833). That authorities may exclude a person from

teaching in the public schools based on citizenship, Ambach v. Norwick, 441

U.S. 68, 76 (1979), obviously does not define power to exclude a student on

that ground. See Plyler v. Doe, 457 U.S. 202 (1982). Moreover, because

school attendance (up to a certain age) is compulsory, a restriction is the

equivalent of a mandate, rather than a condition on a benefit. See Barnette,

319 U.S. at 629 (noting interplay of flag salute requirement and attendance

laws); Earls, 533 U.S. at 841 (Breyer, J., concurring) (noting that drug

testing policy “preserve[d an] option for a conscientious objector”).

23

Petitioners’ contrary argument is a breathtaking reinterpretation

of Tinker and Fraser — which,are claimed to have together

established that student speech may not be suppressed to quell

controversy, but that the student may be punished for

“undermining” the school’s communication of a message

important to its educational mission.'* As the court below was

quick to perceive, Petitioners’ “undermining”/“mission”

construct is a roundabout way of describing power to punish

speech based on governmental disapproval or disagreement

with the idea expressed, i.e., “viewpoint discrimination.”

So disambiguated, the claim that Tinker prohibited school

authorities from suppressing discussion of controversial topics

— but left the door open for suppressing speech expressing

government-disfavored viewpoints (on matters “central” to the

school) is simply untenable. It is a cardinal First Amendment

principle that viewpoint-based restrictions are more suspect

than those which apply even-handedly to all sides of an issue,

ACLU vy. Mineta, 319 F. Supp. 2d at 86 (a law aimed at

“shield[ing] the nation’s youth from ai/ conversation regarding

controlled substances” might have been permissible; one

targeting only one side of the “dialogue regarding legislative

reform of the narcotics laws”); see also Velazquez, 531 U.S. at

548-49 (otherwise discretionary “funding decision cannot be

aimed at the suppression of ideas thought inimical to the

Government’s own interest”), and nothing in 7inker hints that

things should be inverted inside the school gate. To be sure,

Tinker held that public schools are not the kind of forum from

which controversial speech may be excluded (absent “material[]

and substantial disruption,” 393 U.S. at 513), but it also

squarely rejected that official disapproval could justify

punishing a student speaker. /d. (A rule “forbidding * * *

'2Detitioners and Amici include references to Kuhlmeier — and half-

hearted suggestions that they punished Frederick to “disassociate” — the

school from his banner, U.S. Br.17. But Frederick obviously did not claim

that the “First Amendment require[d Petitioners] affirmatively to promote”

his expression, 484 U.S. at 271, just to leave it alone.

24

expression by any student of opposition to [Vietnam War]

would be an “obvious” constitutional violation).

Fraser picked up this central point, emphasizing that

“{ujnlike the sanctions imposed on the students wearing

armbands in Jinker, the penalties imposed in this case were

unrelated to any political viewpoint.” 478 U.S. at 685; see also

id. at 689 (Blackmun, J., concurring) (“There is no suggestion

that school officials attempted to regulate respondent’s speech

because they disagreed with the views he sought to express”).

Indeed, almost every page of Fraser resonates with the general

First Amendment rule that government may more freely

regulate the time, place, and manner of protected speech, but

not the idea expressed. See Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989). See 478 U.S. at 683, 684 (school may

limit the “terms” and “manner” of student speech in an

assembly). But the Court approved the civility-promoting rules

Thomas Jefferson drafted for congressional debate, see 478

U.S. at 681-82 (prohibiting “indecent” speech) — not the “gag

rules” Congress imposed to assure that Nineteenth century

critics of slavery could not be heard. See supra."

The First Amendment problem with Petitioners’ argument

is not, as the decision below may have implied, that a school

might define its “mission” too elastically, see U.S.Br.11

(arguing that “a school can conceive of its mission as involving

not only the graduation of well-educated students, but students

who have emerged from their K-12 years free from the scourge

of illegal drugs”); or that prevention is not an “important” part

of the high school curriculum,” Pet.Br.9, but rather with its

premise ~— that suppressing heterodox speech is a

constitutionally permissible means for schools to get across

even their most important messages. The viewpoint

>It is likewise implausible to interpret Fraser’s reference to “offensive

terms,” 478 U.S. at 683, as repudiating the “bedrock” First Amendment bar

to censoring “expression * * * because society finds the idea itself

offensive,” Johnson, 491 U.S. at 414.

25

discrimination discussed in Tinker was not condemned because

it concerned a federal, rather than a Des Moines, matter (i.e.,

the Vietnam War); it was condemned because it was viewpoint

discrimination.

There are no shortage of cases explaining why government

may not “interfere with speech for no better reason than

promoting [its own] approved message,” Hurley, 515 U.S. at

579; Buckley v. Valeo, 424 U.S. 1, 48-49 (1976); R.A.V., 505

U.S. at 396, and that principle’s application to the public school

environment was settled long before Tinker — in Barnette, a

landmark decision Petitioners do not cite even once. The Court

did not strike down the mandatory pledge law because it

doubted the importance of the objectives pursued — “‘national

security’” and “‘national unity,””’— 319 U.S. at 626, or that the

Board of Education’s decision to make recitation part of the

school day was the kind of legitimate judgment it was

authorized to make. Rather, the Court held that compulsory

speech “was not a permissible means” of advancing that end, id.

at 640."

Though decided on general Due Process grounds, Meyer v.

Nebraska, 262 U.S. 390 (1923), is to the same effect. It struck

down a law prohibiting foreign language instruction not on

account of doubts as to the legitimacy or educational

importance of the measure’s objective — graduating students

fluent in English and thereby “prepared * * * to understand

current discussions of civic matters” -- but rather because that

“desirable end cannot be promoted by [the] prohibited means”

of limiting what else students could learn. /d at 403. See

Tinker, 393 U.S. at 511 (“[S]}tudents may not be regarded as

closed-circuit recipients of only that which the State chooses to

communicate. They may not be confined to the expression of

4In doing so, the Court explicitly acknowledged the “legislative

judgment” recognized in Minersville School Dist. v. Gobitis, 310 U.S. 586,

599 (1940), that failure to punish the Witnesses “‘might cast doubts in the

minds of the other children which would themselves weaken the effect of the

exercise."” 319 U.S. at 635 n.16 (quoting 310 U.S. at 599).

26

those sentiments that are officially approved”).

These decisions give no indication that a different rule holds

as the curricular hard core of the “work of the schools,” 393

U.S. 508, is approached. That school authorities have almost

plenary power to make educational judgments as to what

scientific principles are important for students to learn, cf.

Edwards v. Aguillard, 482 U.S. 578 (1987), or whether and

which foreign languages will be taught, Meyer, Island Trees

School Dist. v. Pico, 457 U.S. 853 (1982), does not imply the

power to prevent “undermining” such decisions by suppressing

disagreement.

Nor do Amici’s efforts to conjure a mission beyond drug

abuse prevention — to present censorship as inculcating

“fundamental democratic values” — make for easy reading. The

claim that “advocacy of unlawful conduct * * * strikes at the

heart of a school’s basic educational mission to teach

‘fundamental democratic values’” because “our society depends

on the willingness of its members to work to change

objectionable laws, rather than simply violating them,” U.S.

Br.12, sits uncomfortably in a brief that elsewhere maintains

that Frederick could have been punished for expressly

advocating a legalization measure, id 27. The notion that

“respect for law” is advanced by punishing those who disagree

with them is hardly a “democratic value,” see Whitney, 274 U.S.

at 377 (Brandeis, J.); and whether obedience to law is an

unqualified duty is no easy question. See Barnette, 319 U.S. at

629 (vindicating claim grounded in belief “that the obligation

imposed by law of God is superior to that of laws enacted by

temporal government”).

Presumably Amicus would not say that President Bush

undermined the school district’s message by lauding Rosa

Parks’s “defiance” of Montgomery’s segregation laws, “as an

act of personal courage [that] transformed America for the

better,” Address to Armed Forces Wives’ Luncheon (Oct. 29,

2005); see NAACP v. Alabama ex rel. Flowers, 377 U.S. 288,

27

302 (1964) (rejecting effort to oust NAACP based partly on its

“organizing, supporting and financing an illegal boycott’”’) — or

that speaker at Fairbanks’ recent Martin Luther King Jr.

Holiday Youth Breakfast was interfering with public educators’

mission when he told the students assembled about 15-year-old

Claudette Clovin, whose earlier arrest for violating the same

segregation law had inspired Rosa Parks’s stand. See

Friedenauer, “Inspired by an Unsung Hero,” Fairbanks News-

Miner (Jan. 21, 2007).

In fact, Alaska’s State-adopted Content and Performance

Standards for Alaska Students (2006), which “represent what

Alaskans want students to know and be able to do as a result of

their public schooling,” id. at 2, suggest that public education

does not have the mission imputed to it. Rather than exalt law

obedience as a central value, the “government and citizenship”

component suggests a vision more in line with Barnette than

Gobitis, describing a well-educated young person as one who

“recognize[s} the role of dissent in the American political

system” and can “establish, explain, and apply criteria useful in

evaluating rules and laws,” /d. at 19-20.'°

IV. Society's Unquestioned Interest in Curtailing Youth

Drug Abuse Does Not Support The Punishment

Imposed Here

A. The Suppression Here Bears No Real Relationship To

Preventing Drug Abuse

In places, the submissions of Petitioners and Amici read like

a plea for at least a de facto “special needs” exception to the

First Amendment along the lines of the Fourth Amendment one

recognized in Earls. In the context of the serious, intractable,

The standards that relate most closely to drug abuse are phrased in less

than dogmatic terms: Alaska expects high school graduates to “understand

how the human body is affected by behaviors related to eating habits,

physical fitness, personal hygiene, harmful substances, safety, and

environmental conditions; and * * * * demonstrate an ability to make

responsible decisions by discriminating among risks and by identifying

consequences,” /d. at 25.

28

and complex problem of youth drug abuse, this suggests, settled

First Amendment rules — that “speech restrictions cannot be

treated as simply another means that the government may use

to achieve its ends,” 44 Liguormart, Inc. v. Rhode Island, 517

U.S. 484, 512 (1996); that “the normal method of deterring

unlawful conduct is to impose an appropriate punishment on the

person who engages in it,” Bartnicki v. Vopper, 532 U.S. 514,

529 (2001); and that “more speech, not enforced silence,” is

society’s remedy, Whitney, 274 U.S. at 377 (Brandeis, J.) — fail

to persuade, and Barnetie’s concerns about the long-term

effects of censorship are abstract.

While the force of such an appeal is understandable, the

circumstances of this case only highlight why it must be

rejected. First Amendment doctrine already recognizes that

some government interests are compelling enough to suppress

speech; but, recognizing claims of necessity will frequently

(and sincerely) advanced and that the less tangible, but

compelling benefits of free expression must be protected, it

requires that those claiming compelling interests show that the

repressive means will make a substantial difference. See

Barnette, 319 U.S. at 636-37."°

What Petitioners defend here cannot possibly pass that test.

Even accepting that a “Bong Hits 4 Jesus” banner on a public

sidewalk can “lead to” youth drug abuse — premise that is both

fanciful and fraught with First Amendment danger, the regime

the Court is asked to uphold — one, as explained above, in

which every other person present in the same public place could

display a banner bearing a message identical to Frederick’s,

cannot stand. Comparable rules have been invalidated under

First Amendment standards more deferential than those which

govern here. See Greater New Orleans, 527 U.S. at 193.

‘©The Court in that case rejected a claim of “national security” at a time

of war, and the government purposes supporting measures struck down in

Lorillard, 44 Liquormart, and R.A.V. were extremely serious and

compelling.

29

But saying only this much significantly overstates the

efficacy of what Petitioners are defending. As they emphasize,

banners are not the whole story: students are “bombarded with

pro-drug messages from classmates, adults, and the media,”

Pet. Br. 27, and they get information from literature, political

debate, parents and siblings; frem their own experiences and

observation of others. A student sitting at a personal computer

can retrieve 22 million websites by typing in the word

“marijuana” into a search engine — with those of the ONCDP

and NORML among the first appearing. Whether government-

maintained ignorance is an ideal, a policy that seeks to maintain

a‘‘closed circuit,” is not an option. See Bolger v. Youngs Drugs

Prod. Corp., 463 U.S. 60, 73 & n. 26 (1983) (ban must be

evaluated in light of likelihood that minors would have been

exposed to similar “stimuli” from other sources).

Petitioners’ exertions notwithstanding, the parallel here is

not with Earls, but Chandler v. Miller, 520 U.S. 305, 322

(1997), which, after determining that the policy advanced no

anti-drug purpose, apart from enhancing the State’s “image [as]

* * * committed to the struggle against drug abuse,” held that

Fourth Amendment privacy interests may not be “diminishe[d]

for a symbol’s sake,” id.

B. Well-Intended Suppression of Students’ Drug-Related

Speech Is Inimical To The Asserted Prevention Interest

What has just been said is not an argument about the futility

of prevention education, but rather about the futility of

censorship. The relevance of the realities cited above realities

is not limited to the legal question present here; they also

critically affect how drug abuse prevention should be pursued.

Given the inestimable seriousness of the problem of youth drug

abuse, it must be common ground that what matters most is not

the clarity of the message educators send youth, let alone the

steadfastness conveyed to their parents or legislators, but rather

the likelihood that the message will actually induce its audience

to engage in less harmful behavior. As those who study

30

adolescent drug attitudes stress, strategies that deny the reality

that students hear other messages, that they are intelligent and

prone to cynicism, and that many have direct experience with

drug use —— and proceed from the assumption that teenagers

will credit whatever they are told and therefore will be more

deterred by an exaggerated harm message than an accurate one

— cannot work. See Skager, Beyond Zero Tolerance: A Reality-

Based Approach to Drug Education and Student Assistance 4-

10 (2006). And, as noted above, reports of independent

government evaluators confirm in depressing detai! just how

completely programs popular with parents and legislators have

failed.

But this case is not about what educators should say — or

what they may say — but rather what they can punish others for

saying. And on this point, the case is even starker: those who

craft and deliver the message must know what their intended

audience actually thinks, knows, and believes about illegal drug

use — whether these are grounded in fact or myth and even

(especially) if attitudes are “pro-drug” or anti-authoritarian.

There is no conceivable interest in having students tell school

authorities what they want to hear, i.e.,“\just saying no” — then

doing otherwise.

Conclusion

The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

DANIEL N. ABRAHAMSON DAVID T. GOLDBERG

Drug Policy Alliance Counsel of Record

Office of Legal Affairs 99 Hudson Street

819 Bancroft Way 8th Floor

Berkeley, CA 94710 New York, NY 10013

(510 229-5211 (212) 334-8813

Attorneys for Amici Curiae