[lbo-talk] "Bong Hits" oral argument reveals right wing split

[Steven L. Robinson]

(The Supreme Court oral argument of  Morse v. Frederick revealed a split in
the Court's right wing, with Bush appointees, Roberts and Alito apparently
taking opposite sides. Significantly, the religious right has largely lined
up on the side of  the student's right of free expression against the more
traditional authoritarian anti-drug view espoused by former US Solicitor
General Kenneth Starr. SR)

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.

http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1174307788241

This email was cleaned by emailStripper, available for free from
http://www.papercut.biz/emailStripper.htm