Columns

Of Jesus, bong hits and free speech for students

By ROBYN E. BLUMNER, Times Perspective Columnist
Published January 14, 2007

Just thinking of what Joseph Frederick did makes me chuckle. It was a silly stunt that would have been laughed off by anyone with a trace of a funny bone. But rather than enjoy or tolerate the joke, school officials harshly punished him. And so it became a federal case - one about to be decided by the U.S. Supreme Court.

The young man's great crime was to unfurl a banner that read "Bong Hits 4 Jesus" as the Olympic torch relay was passing by his school in Juneau, Alaska, in 2002. All students had been released from class that day to watch the torch go by on its way to the Winter Olympics in Salt Lake City, Utah. Frederick was across the street from the school and not on school grounds when he loosed his message. He later said his intention was to get the banner - which he said was meaningless and just meant to be funny - caught by the television cameras. He succeeded.

But Juneau-Douglas High School principal Deborah Morse was not amused. Morse confronted Frederick, grabbed the banner and crumpled it after Frederick refused to take it down on free speech grounds. Frederick, who was 18 years old at the time, received a 10-day suspension.

He later sued over Morse's retribution and won a unanimous ruling from the 9th U.S. Circuit Court of Appeals. But late last, year the nation's high court agreed to hear the appeal, making it the first student free expression case the Supreme Court has considered in nearly 20 years.

Considering how the landscape of student expression has changed in two decades, the case could have much broader implications.

Whether it's authoring a MySpace page or an entire school-related Web site devoted to comic send-ups and critiques of teachers, administrators and fellow students, young people are disseminating their views online in droves. How much of this expression falls into the category of protected speech and how much may be punished by the school is an open question.

Frederick's case may not directly implicate cyberspace, but it will give us some inkling as to the direction the Roberts court will go. His speech was produced and published off school grounds, as is most online content.

There are three relevant student free speech cases that have been decided by the high court. The high-water mark was the 1969 case of Tinker vs. Des Moines Independent Community School District, in which the court overturned the suspension of a group of students who had worn black armbands to school to protest the Vietnam War. The case gave students broad free expression rights in school, limiting the ability of school authorities to suppress student speech unless that speech would cause a substantial disruption at school or interfere with the rights of others.

In its next case, the court narrowed the Tinker holding by allowing school administrators to limit profane or vulgar language by students. Finally, in a case involving school-run newspapers, the Supreme Court gave school administrators the ability to censor their content, noting that the paper was a product of the school.

In all these cases, the speech at issue occurred within the school's domain. Yet, in Frederick's case, as in the case of most Web-based student speech, the offending speech was produced off campus. To my mind, this alone should put it beyond the jurisdiction of the schools to regulate.

But if Frederick's banner was considered part of a school event, it should still be protected speech, as it wasn't disruptive or profane.

It will be interesting to see whether Frederick enjoys the support of Justice Samuel Alito. As a judge, Alito authored an opinion striking down a school's antiharassment policy because it interfered with the free speech rights of Christian conservative students who wanted to retain the right to denounce homosexuality. (A judgment I agree with.) We'll see if he affords the same right to a student who mentions drug use approvingly.

Kenneth Starr - yes the Kenneth Starr - is representing the principal and school district for free. He claims that school officials should be allowed to restrict prodrug messages such as Frederick's, since it parodies the mission of the school to prevent illicit drug use.

But as the 9th Circuit pointed out, students would be sharply silenced in all sorts of vital areas if the schools could censor their speech whenever it didn't perfectly comport with school-approved ideas.

"The Tinker armbands were about war," wrote Judge Andrew Kleinfeld. "Government has no mission in which victory is so important as war." Yet, the court said, students had a right to oppose the war and thereby undermine support for it.

That was the right way to think in 1969, and it remains so today. We'll soon see if the high court is still that wise.

[Last modified January 13, 2007, 18:58:14]