Free speech, in and out of school

A case featuring an attention-seeking kid holding an absurd sign should not compel the U.S. Supreme Court to limit free speech near high schools.

In 2002, 18-year-old senior Joseph Frederick stood across the street from his high school and unfurled a 14-foot banner that read "Bong Hits 4 Jesus." Frederick invoked his First Amendment right to free speech. An unamused principal, unable to maintain a cool head, ripped up the banner and suspended him, in part for using the word bong, interpreted as defiance of the Juneau, Alaska, school's anti-drug message. It was smart-alec behavior on the teen's part, but was it protected speech? The line between what falls within protected speech and what does not was appropriately drawn in 1969 when the Supreme Court ruled in Tinker v. Des Moines, (Iowa) School District that students have a right to engage in political speech.

The court should not overturn Tinker. But there are limits to free speech, particularly inside a school. School administrators, for example, can regulate speech on campus or at a school-sponsored event if it is vulgar, disruptive or interferes with education. An administrator of any school, public or private, needs that authority. A 1986 Supreme Court case from Washington state, Bethel School District v. Fraser, sharpened the line when it upheld a school's right to restrict students from vulgar speech at a school assembly.

Last week, in oral arguments before the high court, the attorney for the school district, former special prosecutor Kenneth Starr, argued that Frederick's sign glorified marijuana in defiance of the school's anti-drug message. Justice Anthony Kennedy took issue with the provocative banner because, he said, it was not indicative of the kind of image the school wanted to portray.

If the banner had been held on campus, that would be an argument. But Frederick's banner was off campus during a non-school event, an Olympic Torch relay. The school allowed students to attend the relay but Frederick skipped school that day and went to the event on his own.

The student was in a public setting — across the street from the school but not on its grounds — and should have been free to exercise free speech. The Court of Appeals for the 9th Circuit appropriately sided with Frederick, as have the American Civil Liberties Union and religious groups such as the Christian Legal Society, the Rutherford Institute and a law center founded by the Rev. Pat Robertson.

On the other side are anti-drug organizations and two former U.S. drug czars. We are sympathetic to their goal of controlling drugs, but this is not a drug case. It is a speech case.

With children under its charge, and particularly on its property, a school needs to have a degree of authority, including over speech. That is why, for example, The Seattle Times opposes the bill sponsored by Rep. Dave Upthegrove, D-Des Moines, to give editorial control of high-school newspapers to the students.

Another example of schools' rights, approved by the Ninth Circuit Court after the Columbine shootings, is the expanded schools' ability to sanction students for "scary" speech, even when it has no direct impact on the school. Gun-free and drug-free zones have drawn a security perimeter around schools. Appropriately so.

But somewhere comes a limit to the school's authority. Outside school grounds, where politics meet the streets, school regulations fade and the rules are the same as applies to citizens generally, including free speech. Within the schools, access to free speech — from gang clothing to graffiti to pronouncements at school ceremonies — is necessarily within the realm of controlled speech.

Modern principals and superintendents, as well as the Supreme Court justices, should understand the distinction between on and off campus, between a regulated environment and the more tolerant regime outside.