WASHINGTON – A dispute over a simple sign,pitting student against principal,may alter the rules for students' free speech rights for the first time since the height of the Vietnam War.
The Supreme Court sparred with attorneys Monday over an Alaska high school student's banner held aloft as the Olympic torch passed his school.
The court lists the case on the docket as Morse v. Frederick,but spectators affectionately refer to it by its defining slogan: “Bong Hits 4 Jesus.”
Joseph Frederick,then 18,displayed that phrase on a 14-foot banner,which he showcased before television crews five years ago during a Winter Olympics torch-running ceremony in Juneau. The principal suspended him.
Because the school classified the event as a field trip,Frederick was still under school administrators' jurisdiction,even though he was absent from school that morning and was not on school property.
Justice Stephen G. Breyer said he worries the court's eventual ruling would tip the balance between student speech and disciplinary authority in schools.
“A rule for would result in people testing this all over the place,” Breyer said. “A rule against may really limit free speech.”
Part of the debate centered on what,exactly,Frederick meant.
Former U.S. solicitor general Kenneth Starr,representing school officials,argued the message dealt with “illegal drugs and the glorification of the drug culture.”
The banner conflicted with the school's anti-drug policy and,therefore,disrupted the rights of other students attending the event,Starr said.
In contrast,Douglas Mertz,representing Frederick,said,”This is a case about free speech,not about drugs.”
Because Frederick asked for money damages from the principal,Chief Justice John G. Roberts Jr. interjected,”This is a case about money.”
He said a ruling for Frederick could cause teachers to worry about their own finances when they discipline students.
“One could look at these words and say this is just nonsense,” Justice Ruth Bader Ginsburg said.
Justice David H. Souter said he questioned to what extent Frederick's sign was disruptive “on a sidewalk,in a crowd,with kids throwing snowballs waiting for a TV camera to come by.”
Outside the court,Mary Beth Tinker was among those demonstrating to support Frederick. She spoke on the same steps where she walked 38 years ago,before the landmark student free-speech decision that bears her name,Tinker v. Des Moines.
As a junior high school student,Tinker refused to remove a black armband she wore to protest the war in Vietnam. Her name came up frequently inside the court,as justices and lawyers tried to apply the Tinker ruling. It prohibits school officials from censoring student expression unless it causes substantial disruption or material interference with school activities.
The justices and lawyers probed just how disruptive various forms of protest could be – from buttons worn in class to banners unfurled in a student assembly.
“It's baffling that a court could see fit to so severely punish an educator for her good faith effort to do her job,” said Francisco Negrón,general counsel for the National School Boards Association,in a March 14 press release.
While most of the debate focused on the first half of Frederick's phrase,several religious organizations are siding with Frederick in defense of Jesus.
A win for the principal,according to a brief filed by the Christian Legal Society,”would almost certainly end up undermining legitimate expressions of religion by public school students.”
Other religious organizations,including the Alliance Defense Fund,Liberty Counsel and the Liberty Legal Institution,also filed briefs in support of Frederick.
With a reputation for challenging authority,Frederick borrowed the phrase from a snowboard sticker to spark the First Amendment debate. “Bong hits” refers to smoking marijuana – an illegal activity that struck against school policy.
“I wasn't trying to spread any idea. I was just trying to assert my right,” Frederick said in his brief.
After she witnessed Frederick holding the sign at the ceremony,Deborah Morse,then the principal of Juneau-Douglas High School,crossed the street and confronted him. Morse suspended Frederick for 10 days.
The principal initially suspended Frederick for five days,but after the student quoted Thomas Jefferson on free speech,she doubled the punishment.
Frederick said he was a private citizen practicing free speech in a public space. Morse said Frederick's sign promoted smoking marijuana and violated the school's policy banning students from advocating drug use.
Outside the court Monday,about 60 students joined the demonstration to support Frederick,many holding signs that read: “FREE SPEECH 4 STUDENTS.”
“We are concerned,if the court sides with the school board,that students can no longer question random locker searches,school drug testing or the effectiveness of drug education programs like DARE,” said Tom Angell of Students for Sensible Drug Policy,speaking of the Drug Abuse Resistance Education program.
Anthony Valenzuela and Christopher Fuentes,both 18,students at Stevens High School in Rapid City,S.D.,said they came to witness the arguments because they were similarly confronted by school administrators for wearing pro-medical marijuana shirts to school.
They said Morse v. Frederick echoed the need for political discussion in schools.
“This is what school is about – the learning process is about hearing multiple sides.” said Alex Koroknay-Palicz,executive director of the National Youth Rights Association.
The court's decision is expected by summer.