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Originally published March 18, 2007 at 12:00 AM | Page modified March 18, 2007 at 2:02 AM

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"Bong" banner free-speech dispute to hit Supreme Court tomorrow

The most important student free-speech conflict to reach the Supreme Court since the height of the Vietnam War hinges on a somewhat absurd...

The Washington Post

WASHINGTON — The most important student free-speech conflict to reach the Supreme Court since the height of the Vietnam War hinges on a somewhat absurd, vaguely offensive, mostly nonsensical message of protest: "Bong Hits 4 Jesus."

That's the slogan high-school student Joseph Frederick fashioned in 2002 with a 14-foot piece of paper and a $3 roll of duct tape. His goal was partly to get on TV as the Olympic torch passed through his town of Juneau, Alaska, and mostly to get under the skin of his disciplinarian principal, Deborah Morse, with whom he had a running feud.

It worked, at least the irritating-the-principal part. Morse crossed to Frederick's position across from the school and confiscated the banner and later suspended him for 10 days. Frederick said Morse tacked on the last five days when he paraphrased Thomas Jefferson's admonition that "speech limited is speech lost."

In the five years since, a classic conflict between a second-semester senior and his frazzled principal has spawned numerous lawsuits and conflicting court rulings.

A wide range of interested parties has assembled for what some see as an epic Supreme Court battle that will be heard Monday.

The American Civil Liberties Union (ACLU) has been on Frederick's side from the start, joined by a diverse coalition of civil-rights, constitutional-law and religious organizations.

Defining free speech


Free-speech rights of students and the limits school administrators may impose on them are defined in three cases:

Tinker v. Des Moines (Iowa) Independent Community School District (1969): Court held that students had a First Amendment right to protest the Vietnam War by wearing black armbands in class. "It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate," the majority opinion said.

Bethel (Wash.) School District v. Fraser (1986): The court said a student had no First Amendment right to give a "plainly offensive," sexually charged speech at a school assembly. The court said schools had a right to limit speech that would disrupt the educational mission of the school.

Hazelwood School District v. Kuhlmeier (1988): Students don't have the right to publish stories, in this case on divorce and pregnancy, in a school-sponsored newspaper over the principal's objection. Such speech, the justices ruled, could be perceived as carrying the official sanction of school officials.

Kenneth Starr, the former special prosecutor of President Clinton, has volunteered his time to the Juneau School District, and school boards across the country, plus the Bush administration, are supporting Morse and the school district.

Morse v. Frederick asks the justices to weigh the court's famous 1969 ruling that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" with more recent decisions acknowledging a school system's ability to enact rules that maintain order and protect other students from messages deemed harmful.

In this case, the school board maintains that Frederick's slogan encourages smoking marijuana. Other school districts have placed restrictions on clothes or speech believed to carry the potential of disruption or violence.

Both sides equate an adverse ruling with cataclysmic results.

The "extraordinarily broad claim" asserted by the government, said ACLU national legal director Steven Shapiro, "would in effect overrule the entire architecture of student-speech law that the Supreme Court has so carefully constructed over the past 40 years."

Morse's brief, written by Starr and a team of pro bono attorneys at the law firm of Kirkland and Ellis, said ratification of Frederick's victory in the appellate court would make all the more daunting "the vital task of teachers, administrators and volunteer school-board members in attending holistically to the needs of millions of students entrusted every school day to their charge."

Frederick was one of them, five years ago, though he was not a particularly happy student at Juneau-Douglas High School.

One day, he refused a vice principal's order to leave a student commons area where he was reading Albert Camus, and police were called. The next day, he remained in his seat while others stood for the Pledge of Allegiance and he was hauled to the principal's office.

He planned his ultimate protest for Jan. 24, 2002, the day the Olympic Torch was scheduled to pass through Juneau, part of a 50-state relay in advance of the winter Olympics in Salt Lake City. Frederick said he'd seen the phrase "Bong Hits For Jesus" on a sticker on a snowboard.

"To me, it's absurdly funny," Frederick, now 23, said in a recent conference call with reporters. "The phrase was not important. I wasn't trying to say anything about religion, I wasn't trying to say anything about drugs, I was just trying to say something. I wanted to use my right to free speech, and I did it."

Frederick's case presents some unusual facts. For one thing, he was 18 at the time of the event, and he was careful not to display his protest message on school grounds.

At least one nonstudent was among the group holding the banner and his lawyers contend that even if his message was considered pro-marijuana, debates about legalizing the drug are a legitimate topic of political discussion in Alaska, where the state Supreme Court has ruled adults have the right to possess small amounts of pot.

Even school officials acknowledged Frederick's actions were not disruptive. But the school board says Frederick's protest came at what was a school-sponsored event: the high school was released for the parade, and the cheerleaders and pep band entertained. "It was a field trip," Starr says, even if it occurred outside the school.

A district court judge dismissed Frederick's suit against Morse and the school board that backed her decision. But the U.S. Court of Appeals for the 9th Circuit said government officials cannot punish speech with which they disagree.

That court held Morse personally liable for violating Frederick's rights.

Morse is now an administrator with the Juneau School District. Frederick, meanwhile, has learned much about the legal system. He sued the Juneau police for a series of what he alleged were harassments that occurred after the banner incident, and he received a settlement from the city. As fate would have it, his father Frank worked for the company that insured the Juneau School District; he sued after he claimed he was fired for not pressuring his son to drop his lawsuit. A jury awarded him a nearly $200,000 settlement.

Joseph Frederick also was arrested as a Texas college student for distributing marijuana. "I never professed to be perfect or a saint," he said in the conference call.

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