Supremes Reconsider 9th on 'Bong Hits'
By Tony Mauro Legal Times
March 20, 2007
WASHINGTON - During oral arguments Monday, the Supreme Court's two newest justices seemed to be on opposite sides of a major free-speech case, forecasting possible sharp divisions among justices on the power of public-school officials to censor students.
Morse v. Frederick, which reached the high court via a March 2006 Ninth Circuit ruling, began in 2002 when Joseph Frederick, then a Juneau, Alaska, high school student, unfurled a banner bearing what even he says was a nonsensical message: "BONG HITS 4 JESUS." Principal Deborah Morse, interpreting it as a pro-drug message, told him to take it down and suspended him when he didn't.
Five years later, Frederick's suit against the principal has evolved into a potential landmark reassessment of the landmark 1969 student-rights decision, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
After a trial court blessed the 10-day suspension, the Ninth Circuit cited Tinker and unanimously reversed, in an opinion by Judge Andrew Kleinfeld. In Tinker, the Supreme Court upheld a student's right to wear an antiwar armband because it couldn't be shown to have disrupted the school's educational function. The "Bong Hits" banner prevailed on the same logic.
"No novel question is posed on the basis urged by defendants - that 'Bong Hits 4 Jesus' promoted a view contrary to government policy," Kleinfeld wrote for the Ninth Circuit last year, "because the armbands in Tinker raised the same concerns."
On Monday, former Solicitor General Kenneth Starr and Deputy Solicitor General Edwin Kneedler, arguing on behalf of Morse, seemed to win over Chief Justice John Roberts with the argument that school officials should be given deference when restricting student speech to advance a school's educational mission - especially, though not exclusively, when that mission is fighting illegal drugs.
"Can't the school decide that it's part of its mission to try to prevent its students from engaging in drug use?" Roberts asked incredulously.
But Justice Samuel Alito described that as a "very, very disturbing argument," because granting such deference would give school officials a broad charter to punish student speech by simply declaring it contrary to their ever-expanding educational mission. "They can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that's inconsistent with educational missions," Alito said.
Alito's mention of fundamental values may be a nod to the arguments that Christian legal organizations have made, perhaps unexpectedly, in support of Frederick's right to display the bong banner.
In the last decade or so, Christian groups have relied on free speech precedents to win greater freedom for students to engage in religious expression in public schools. As a result, the American Center for Law and Justice and the Alliance Defense Fund, two of the leading Christian legal advocacy groups, are worried that if the Court sides with the Juneau principal and narrows Tinker, religious expression will also be vulnerable.
"Like the speech at issue in this case, religious speech can be controversial," the Alliance Defense Fund told the court in a brief. "As such it is often the target of censorship in our nation's public schools."
Considerable argument time was consumed Monday over disputed facts of the case, which could lead to another possible resolution: remanding the case to lower courts for further fact-finding.
Several justices wondered why Morse viewed the banner as a pro-drug message at all. And it was noted that Frederick displayed the banner, not on school property but across the street. The incident occurred in January 2002 when the Olympic torch passed through Juneau, and students from Juneau-Douglas High School were allowed to watch. Cheerleaders and the school band greeted the procession. When the torchbearers approached and TV cameras went on, Frederick, who intentionally avoided school property, unfurled the banner.
Frederick insists he had no drug message in mind. "It was meant to be funny, subject to the interpretation of the reader," Frederick said in a recent telephone press conference, adding that he hatched the idea as a "free-speech experiment" after school officials weeks before had not allowed him to sit during the recitation of the Pledge of Allegiance.
Justice David Souter seemed to be the most sympathetic toward student expression during the argument, repeatedly asking Starr what was disruptive about the banner, especially in an off-campus, non-classroom setting. "What did it disrupt on the sidewalk?"
Justice Anthony Kennedy, like Alito, worried aloud about giving too much power to school officials. "Suppose you have a mission to have a global school. Can they ban American flags on lapels?"
In response, Starr said no and retreated, as he did throughout the argument, to his core argument that "this case is ultimately about drugs and other illegal substances." He invited the court to rule narrowly and fashion a rule that focuses on pro-drug speech.
>From the moment he rose to speak, Frederick's lawyer Douglas Mertz countered
Starr's gambit. "This is a case about free speech. It is not a case about
drugs," Mertz said. But Roberts interjected, "It's a case about money. Your
client wants money from the principal personally." Frederick is in fact
seeking money damages for the constitutional violation, but "that's by no
means his object here," Mertz said.
Mertz emphasized that the banner was displayed on a public sidewalk at a public event marking the Olympic torch's passage through town - not a school assembly. "What it was a person displaying this banner in a quiet, passive manner that didn't interfere with anybody's observation."
Frederick, now working as a high school English teacher in China, did not attend the arguments.
Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is tmauro at alm.com.
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