His suit was dismissed by the federal district court, but on appeal, the Ninth Circuit reversed the ruling, concluding that Frederick's speech rights were violated.

[5] Supreme Court cases since Tinker have generally sided with schools when student conduct rules have been challenged on free speech grounds.

Juneau school district superintendent Peggy Cowan stated, "My concern is that [the court's ruling] could compromise our ability to send a consistent message against the use of illegal drugs.

He said: "The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the illegal use of drugs.

He cited Vernonia School District 47J v. Acton and Board of Education v. Earls as cases demonstrative of the Court's strong past stances on matter related to combating the "scourge of drugs".

A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the class room: we are light years away from that.

Based on these concerns, the opinion concluded that the principal's actions were motivated by a "serious and palpable" danger of drug abuse quite different from the amorphous fears of anti-war sentiment at play in Tinker.

[36] In Tinker, the school principal had punished students for wearing black anti-war armbands based on his "undifferentiated fear or apprehension of disturbance" or "mere desire to avoid ... discomfort and unpleasantness.

"[36] Principal Morse's failure to act against the banner "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.

"[37] Justice Clarence Thomas wrote a concurrence that argued that students in public schools do not have a right to free speech and that Tinker should be overturned.

[41]Alito agreed that Morse did not violate Frederick's First Amendment rights and emphasized in his concurrence that the holding only applies to students who advocate illegal drug use.

He opposed the "educational mission" and in loco parentis analysis in favor of a "special characteristic" of schools that he identifies to be ensuring the physical safety of the students.

[43] Because it was not clear whether the school principal's actions in taking down the banner violated the First Amendment, Breyer would have simply issued a narrow decision indicating that she was shielded by qualified immunity and gone no further.

[46]Stevens criticized the majority decision as one that "trivializes the two cardinal principles upon which Tinker rests", 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".

[47] "[C]arving 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.

[49]Stevens argued that it would be "profoundly unwise to create special rules for speech about drug and alcohol use", pointing to the historical examples of both opposition to the Vietnam War and resistance to Prohibition in the 1920s.

[54] She regards this suggestion as "not surprising" given the outcome of the decision, the plain language of the holding, and the dissenting Justices' charge that the opinion did "serious violence to the First Amendment".

[55] She adds that other commentators have asserted that while Morse did not dramatically change the law regarding student speech, it failed to answer any of the questions left by the Tinker trilogy.

For example, in Wisniewski, a student was suspended after school officials learned of an instant messenger icon he had created that depicted the shooting of his English teacher.

In one of the few decisions citing to Morse, the Second Circuit declined to consider whether the true threat doctrine was relevant, and instead applied Tinker's substantial disruption test.

"[52] Dickler noted that "The few courts that have discussed Morse have disagreed about the breadth of its holding,"[52] Kenneth Starr, former Dean at Pepperdine University School of Law, and who argued for Morse before the Supreme Court, introduced a symposium about the case[57] noting that Chief Justice Roberts "sought to keep the decision quite narrow", limiting the case "to the issue of public school administrators' ability to keep the educational process free from messages about illegal drugs" and drawing from the Court's existing student speech jurisprudence that "permitted school administrators broad discretion to keep out of the educational environment antisocial messages celebrating drug use".

The Center for Individual Rights, National Coalition Against Censorship, and other groups that advocate First Amendment protection filed amici curiae in support of Frederick.

Solicitor General Paul Clement filed an amicus brief in support of the school district's decision to prohibit controversial speech.

[63] The Drug Policy Alliance and the National Youth Rights Association assisted with the rally which brought dozens of students from across the country to the court steps.

"[65] The original "BONG HiTS 4 JESUS" banner hung in the First Amendment gallery of the now-defunct Newseum in Washington, D.C.[66] There was disorder at the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick and his fellow sign-holders.

They concede that their objection to the display, and the reason why the principal ripped down the banner, was not concern that it would cause disruption but that its message would be understood as advocating or promoting illegal drug use.

[17]Because this is a section 1983 case in which the Appellees asserted qualified immunity, we are required to proceed in accord with Saucier v. Katz and determine first whether Frederick's constitutional rights were violated.

1109, 1128-34 (2005) (discussing recent cases challenging schools' anti-discrimination, anti-harassment, or dress code policies on First Amendment grounds); Justin T. Peterson, Comment, School Authority v. Students' First Amendment Rights: Is Subjectivity Strangling the Free Mind at Its Source?, 3 Michigan State Law Review 931, 964-77 (2005) (proposing a five-part "viewpoint neutral rule" for student speech that incorporates parts of Tinker, Fraser, and Kuhlmeier, and prohibits hate speech under Fraser's offensiveness prong); see also Cindy Lavorato & John Saunders, Commentary, Public High School Students, T-Shirts and Free Speech: Untangling the Knots, Educ.

Law Rep. 1 (discussing recent federal appellate court decisions of First Amendment challenges by students to disciplinary actions for wearing t-shirts proclaiming homophobic, racist, or anti-religious messages).

Principal Morse says that the release was "an approved social event or class trip", noting that the pep band played as the torch passed the school, the cheerleaders were out in uniform to greet the torch-bearers, and teachers supervised.