A high school senior’s 14-foot banner proclaiming “Bong Hits 4 Jesus” gave the Supreme Court a provocative prop for a lively argument Monday about the extent of schools’ control over student speech.
If the justices conclude Joseph Frederick’s homemade sign was a pro-drug message, they are likely to side with principal Deborah Morse. She suspended Frederick in 2002 when he unfurled the banner across the street from the school in Juneau, Alaska.
“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” Chief Justice John Roberts said Monday.
But the court could rule for Frederick if it determines that he was, as he has contended, conducting a free-speech experiment using a nonsensical message that contained no pitch for drug use.
“It sounds like just a kid’s provocative statement to me,” Justice David Souter said.
Students in public schools don’t have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from the Vietnam era.
Morse, now a Juneau schools administrator, was at the court Monday. Frederick, teaching and studying in China, was not.
Kenneth Starr in court
Former independent counsel Kenneth Starr, whose Kirkland and Ellis law firm is representing Morse for free, argued that the justices should defer to the judgment of the principal. Morse reasonably interpreted the banner as a pro-drug message, despite what Frederick intended, Starr said.
School officials are perfectly within their rights to curtail student speech that advocates drug use, he said. “The message here is, in fact, critical,” Starr said.
Starr, joined by the Bush administration, also asked the court to adopt a broad rule that could essentially give public schools the right to clamp down on any speech with which they disagree. That argument did not appear to have widespread support among the justices.
Douglas Mertz of Juneau, Frederick’s lawyer, struggled to keep the focus away from drugs. “This is a case about free speech. It is not a case about drugs,” Mertz said.
Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.
The outcome also could stray from the conservative-liberal split that often characterizes controversial cases.
Justice Samuel Alito, who wrote several opinions in favor of student speech rights while a federal appeals court judge, seemed more concerned by the administration’s broad argument in favor of schools than did his fellow conservatives.
“I find that a very, a very disturbing argument,” Alito told Justice Department lawyer Edwin Kneedler, “because schools have ... defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”
Justice Stephen Breyer, in the court’s liberal wing, said he was troubled that a ruling in favor of Frederick, even if he was making a joke, would make it harder for principals to run their schools.
“We’ll suddenly see people testing limits all over the place in the high schools,” Breyer said.
On the other hand, he said, a decision favorable to the schools “may really limit people’s rights on free speech. That’s what I’m struggling with.”
After the arguments, two dozen sign-carrying demonstrators chanted, “Teachers should teach, not limit free speech.”
Scores of students waited outside the court early Monday for a chance to listen to the arguments.
Ninth graders on a class trip from Mosinee, Wis., were in general agreement on the issue. Cari Kemp, 15, said Frederick’s protest was “just a joke” but that “the school took it too far.”
The justices, as they often do, sought to probe the limits of each side’s argument by altering the facts one way or another.
What if, Souter asked, a student held a small sign in a Shakespeare class with the same message Frederick used. “If the kids look around and they say, well, so and so has got his bong sign again,” Souter said, as laughter filled the courtroom. “They then return to Macbeth. Does the teacher have to, does the school have to tolerate that sign in the Shakespeare class?”
Justice Antonin Scalia, ridiculing the notion that schools should have to tolerate speech that seems to support illegal activities, asked about a button that says, “Smoke Pot, It’s Fun.”
Or, he wondered, should the court conclude that only speech in support of violent crime can be censored. “’Extortion Is Profitable,’ that’s OK?” Scalia asked.
A clear majority seemed to side with Morse on one point, that she shouldn’t have to compensate Frederick. A federal appeals court said Morse would have to pay Frederick because she should have known her actions violated the Constitution.
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 Bush.
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.
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.
Civil rights, financial liability
Frederick 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.
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.
A decision is expected by July.
The case is Morse v. Frederick, 06-278.