Justices Hear 'Bong Hits' Free-Speech Case
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The Supreme Court ruled 40 years ago that students do not lose their First Amendment right of free speech when they walk in a schoolhouse door. That case involved Iowa students who wore black armbands to protest the Vietnam War. Today the Supreme Court tackles the question of student speech rights again.
And we have this report from NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Five years ago, 18-year-old Joe Frederick and some friends decided to raise a protest banner at an Olympic torch parade. Frederick had already tangled with high school officials in Juneau, Alaska. He'd been threatened with suspension for refusing to stand for the pledge of allegiance.
This time he chose a public sidewalk across the street from the high school. And as the Olympic parade neared, he and his friends unfurled a banner that read Bong Hits 4 Jesus.
Mr. JOE FREDERICK (Senior Student, Juneau, Alaska): And it was certainly not intended as a drug or religious message. I conveyed this to the principal by explaining that it was intended to be funny, subjectively interpreted by the reader, and most importantly, an exercise of my inalienable right to free speech.
TOTENBERG: On seeing the banner, though, the school principal crossed the street and ordered Frederick to take it down. When Frederick invoked his First Amendment rights, the principal grabbed the banner, crumpled it up and suspended Frederick for five days. The penalty was doubled, Frederick says, after he quoted Thomas Jefferson to the principal.
Frederick and his father appealed the suspension through the school system and eventually challenged it in court. A federal appeals court panel ruled that the school system was liable for damages because the principal had unconstitutionally punished the student for exercising his right of free speech.
The appeals court opinion was written by one of that court's most conservative members, Andrew Kleinfeld, who noted that school officials conceded the banner did not cause any disruption and that the reason the principal ripped it down was that its message could be understood as advocating illegal drug use. Schools are entitled to censor speech that disrupts, he said, but schools are not entitled to suppress speech that undermines whatever mission a school defines for itself.
The Juneau school board appealed to the Supreme Court backed by the Bush administration, and today the justices hear argument in the case. Representing school officials, Pepperdine Law School dean Kenneth Starr argues that even though the banner was unfurled on a public street, this event was in essence a school field trip.
Mr. KENNETH STARR (Dean, Pepperdine Law School): The pep band was playing, the cheerleaders were cheering, and the students were permitted to leave their classes, and the faculty members were - and the teachers were out with the students.
TOTENBERG: School officials, he contends, were justified in ordering Frederick to take down the Bong Hits 4 Jesus banner.
Mr. STARR: It could be reasonably interpreted by a principal to be a message that is promoting drug use. And so one of the questions in this case is who do we rely upon to interpret the message? We think that the law is very clear that a strong degree of deference is owed to school administrators.
Mr. JAY SEKULOW (Legal Director, American Center for Law and Justice): If the court says this student's speech can be censored, well then I don't know what becomes off limits.
TOTENBERG: Jay Sekulow is legal director of the Reverend Pat Robertson's American Center for Law and Justice. He doesn't agree with Joe Frederick's message but he does think Frederick has the right to express himself both in school and out of school on the public street.
Mr. SEKULOW: What if the student expression in the particular parade was, you know, Jesus is Lord? Would that now be subject to censorship? Sure, I guess under the rationale that the school is using anything goes.
TOTENBERG: Conservative and liberal groups had filed a dozen briefs siding with Joe Frederick, claiming that under the Juneau school board's rationale student speech about religion, abortion, gay marriage, almost anything could be censored.
The school board counters that drug use by minors is illegal, to which Frederick and his allies respond that desegregation was also illegal at one time in the South and that under the school board's rationale any discussion of racial integration could have been censored then too.
Joe Frederick's lawyer, Dan Mertz, contends that such speech is protected not just off school property but also on school property, as long as it is not lewd, not subsidized by the school and not disruptive. A second question in the case is whether if school officials acted improperly in this case they are immune from damage suits on the grounds that they acted in good faith.
Kenneth Starr contends that if the Supreme Court rules against the school on this point, it would undermine anti-drug policies all over the country. But student speech advocates counter that without the threat of money damages school officials would remain free to punish speech that they simply don't like.
Lawyer Mertz observes that early in this case Joe Frederick and his father offered to settle the case if the school put on a school assembly at which students would hear from an ACLU representative and a school board official explaining what student rights are. The school board, he says, declined the offer. And now the Supreme Court will decide the case.
Nina Totenberg, NPR News, Washington.
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