Bloomberg News - Supreme Court Case May Limit Free Speech Rights for Students

March 19, 2007
by Greg Stohr

(Bloomberg) -- The latest U.S. Supreme Court clash over school students' free-speech rights began as little more than a prank.

As the Olympic torch passed by a public high school in Juneau, Alaska, in January 2002, senior Joseph Frederick and several friends raised a banner that declared, "Bong Hits 4 Jesus."

The phrase, though it referred to a device used to smoke marijuana, "was never meant to have any substantive meaning and it certainly was not intended to have a drug or religious meaning," Frederick said in a conference call with reporters. It was, he added, "intended to be funny."

Humorous or not, the expression now is at the center of a potentially far-reaching fight over the power of school officials to control what students say. The justices today hear arguments on Principal Deborah Morse's decision to confiscate the banner, which she read as a call to use illicit drugs, and suspend Frederick. It's the court's first student speech case since 1988.

At stake is "the ability of school principals and school officials to enforce anti-drug policies," said Kenneth Starr, who will represent Morse and the Juneau School Board at the high court. "Illegal drugs and the celebration of the drug culture are enormous problems for public schools."

Starr, the former independent counsel who investigated whether President Bill Clinton lied under oath, is now dean of the law school at Pepperdine University in Malibu, California.

Free-Speech Rights

A San Francisco-based federal appeals court said Morse and the school board violated Frederick's free-speech rights and that he could pursue a lawsuit against them. The lower court also concluded that Morse wasn't entitled to "qualified immunity," a legal doctrine that shields government officials from personal liability unless they violate a clearly established right.

Frederick is supported by an unlikely alliance that includes the New York-based American Civil Liberties Union, a gay-rights group and prominent social conservatives including Jay Sekulow of the American Center for Law and Justice. That Washington-based group has argued at the Supreme Court against abortion rights.

Sekulow urged the justices not to let the frivolity of Frederick's banner obscure the importance of student speech rights. He said the court shouldn't restrict the freedom of students to voice opinions about important social and political issues.

"It would be regrettable if the court were to resolve the important questions of constitutional law at issue here in the context of a jokester's prank, rather than a student's bearing of a serious message," Sekulow wrote in a court filing.

Administration Stance

The Bush administration wants the court to give school administrators broad authority to punish students who advocate illegal drug use.

"The First Amendment does not protect student speech contrary to a school's basic educational mission, including speech that advocates illegal drug use," U.S. Solicitor General Paul Clement, the administration's top courtroom lawyer, argued in court papers.

The Supreme Court has said school administrators can't bar non-disruptive political expression, though they can punish lewd or vulgar student speech. In their most recent ruling, in 1988, the justices said officials can regulate school-sponsored speech, including student newspapers.

Frederick, then 18, was among hundreds of students who gathered outside Juneau-Douglas High School to watch the torch relay, a prelude to the 2002 Winter Olympics in Salt Lake City.

Not in Class

Although the event took place during the school day, Frederick hadn't been in class that morning because, he says, his car got stuck in the snow.

Upon arriving, he joined a group of friends, including at least one non-student, on the sidewalk across the street from the school. They hoisted the banner just as the torch and accompanying television cameras drew near.

Morse confronted the group and demanded that they take the sign down. When Frederick refused, she seized the banner and ordered him to report to her office. Morse later suspended Frederick for 10 days, and the school board upheld her decision.

The unusual circumstances of the case will pose a number of wrinkles for the justices. In addition to the ambiguity of the "Bong Hits" phrase, the court will have to consider whether the event took place on-campus, according to David L. Hudson Jr., a scholar at the First Amendment Center in Nashville, Tennessee. Past Supreme Court cases have given administrators far more authority to police speech on school grounds.

The justices ultimately might send the case back to a lower court to sort out some of those factual issues, Hudson said. Still, as the first student speech case for all but two of the court's nine justices, the dispute is getting close attention from school administrators, civil libertarians and constitutional scholars.

"It certainly has the potential to be incredibly significant," Hudson said. "It's been 20 years."

The justices will rule by July. The case is Morse v. Frederick, 06-278.