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‘Bong Hits 4 Jesus’ case heads to high court

A student who unfurled a  "Bong Hits 4 Jesus" banner has a date Monday at the Supreme Court in what is shaping up as an important test of constitutional rights.
Supreme Court to Hear Student Free Speech Case
As the Olympic torch approached in Juneau, Alaska, in 2002 on the way to Salt Lake City, then-high school student Joseph Frederick and friends, excused from class at the high school across the street for the event, hold up the banner in the incident that started the case that will be heard in the U.S. Supreme Court on Monday.Clay Good / Zuma Press
/ Source: The Associated Press

The message connected drug use and religion in a nonsensical phrase that was designed to provoke, and it got Joseph Frederick into a lot of trouble.

After he unfurled his 14-foot "Bong Hits 4 Jesus" banner on a Juneau, Alaska, street one winter morning in 2002, Frederick got a 10-day school suspension. Five years later, he has a date Monday at the Supreme Court in what is shaping up as an important test of constitutional rights.

Students do not leave their right to free speech at the school door, the high court said in a Vietnam-era case over an anti-war protest by high school students.

But neither can students be disruptive or lewd or interfere with a school's basic educational mission, the court also has said.

How to strike that balance is the question, particularly since the Columbine massacre and the Sept. 11 attacks have made teachers and administrators quicker to tamp down on unruly or unusual behavior.

Other student speech cases making their way through the courts include a student who was pulled from class after taping an anti-gay message to his shirt and a middle schooler who got into trouble for a shirt that uses symbols of drugs and alcohol to criticize President George W. Bush.

Student: Case about speech, not drugs
Unlike the Vietnam protesters who won their court fight in the late 1960s, Frederick says he was not staking out a political position with the banner he fashioned with pieces of duct tape as lettering.

"What the banner said was, 'Look here, I have the right to free speech and I'm asserting it.' I wasn't trying to say anything religious, anything about drugs," Frederick said in a telephone news conference from China, where he now teaches English and studies Mandarin.

An array of groups, from advocates of drug law changes to gay rights backers to supporters of religious freedom, have lined up behind him. "This case is not about drugs. This case is about speech," said Douglas Mertz of Juneau, Frederick's lawyer.

The Bush administration, school boards, anti-drug groups and former drug control directors William Bennett and Barry McCaffrey are supporting the Juneau schools and principal Deborah Morse. They say that the court should support school administrators who impose reasonable limits on student expression and that those limits should extend to promotion of illegal drugs.

"It was the wrong message, at the wrong time and in the wrong place," said former independent counsel Kenneth Starr, who is representing the school district free of charge, in court papers.

Frederick had previous run-ins with school administrators before the banner dispute. He said he first saw the slogan on a snowboard and thought it would make a good test of his rights because, though meaningless, it sounds provocative.

He chose to display the banner during a school-sanctioned event to watch the Olympic torch relay as it passed through Juneau on its way to the 2002 Winter Games in Salt Lake City.

Morse saw the banner, confronted Frederick and suspended him. Frederick said she doubled the suspension to 10 days when he quoted Thomas Jefferson on free speech.

Frederick, helped by the American Civil Liberties Union, sued the principal and the Juneau school district. He lost in federal district court, but the 9th U.S. Circuit Court of Appeals said Frederick's rights were violated and that Morse could be held financially liable for her actions.

Banner was on public property
Among the factors that could weigh in the decision, Frederick was standing on public property, not school grounds when he displayed the banner. The school said students were allowed to leave class to see the torch pass by, making the event school-sanctioned. Frederick, however, never made it to school that day before the event.

The other issue in the case is whether the principal should have to compensate Frederick. The appeals court said Morse should have known that her decision to suspend Frederick ran counter to Supreme Court precedent. But Starr said she made a reasonable, on-the-spot decision that, even if wrong, should not subject her to a "potentially ruinous damages award."

Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.