[BokerokyBan]

Supreme Court hears arguments in free speech case

By David G. Savage
Times Staff Writer

March 19, 2007

WASHINGTON — High school students may have a right to free speech, but it does not go so far as to include the freedom to unfurl a banner promoting "bong hits" at a school event, former U.S. Solicitor General Kenneth Starr told the Supreme Court today.

"This is disruptive of the educational mission and inconsistent with the school's message" against using drugs, Starr said.

Starr, now dean of the Pepperdine Law School, represents a school principal from Juneau, Alaska, who was sued for ripping down the banner and suspending the student who unfurled it.

The case forces the court to reconsider the line between a student's right to free expression and a principal's authority to limit what is said and done at school.

During the hourlong argument, the justices struggled to draw such a line.

Most of them sounded as though they leaned in favor of the school principal. At the same time, they were wary of saying officials have broad power to punish students whenever they think a student's message is offensive or inappropriate.

Several religious-rights groups filed briefs supporting the student's free-speech right in this case. Their lawyers worry that school officials might, for example, say it was inappropriate for a student to wear a T-shirt that praised Jesus Christ.

Justice Samuel A. Alito Jr. said it would be "disturbing" if principals had such broad authority to pass judgment on what students say at or near school.

But Starr said the court could rule narrowly and give principals the power to forbid signs and banners promoting drugs, alcohol or tobacco. "This case is ultimately about drugs," he said.

The student's lawyer insisted the opposite was true.

"This is a case about free speech. This is not a case about drugs," said Douglas K. Mertz, a lawyer from Juneau.

His client, Joseph Frederick, was an 18-year-old senior in 2002 when an Olympic torch parade was scheduled to pass in front of his high school. As the local TV cameras came by, he and a few fellow students unfurled a 14-foot banner that said: "Bong Hits 4 Jesus."

The message seemed designed to provoke Principal Deborah Morse, and it succeeded in doing so. She tore it down and sent Frederick to the office. She planned to suspend him for five days, but when he invoked Thomas Jefferson and the First Amendment, she doubled the suspension to 10 days.

Frederick later sued and alleged she had violated his constitutional rights.

A federal judge rejected his claim, but the U.S. 9th Circuit Court of Appeals in San Francisco ruled for the student and said the principal could be forced to pay damages.

No damages have been set, and the school board urged the Supreme Court to overrule the 9th Circuit.

The outcome may turn on a ruling from the Vietnam War era. In 1969, the high court upheld the right of high school students to wear black arm bands to protest the war. Young people do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the court said then. But its opinion made clear that principals and teachers need not tolerate "disruptive" speech or protests.

During today's argument, Chief Justice John G. Roberts Jr. said the student's "bong hits" banner was disruptive.

"Can't a school say part of its mission is to discourage drug use?" he asked.

Surely such a pro-drug message would be out of line in a classroom, added Justice David H. Souter. "Does the school have to tolerate that sign [promoting 'bong hits'] in a class about Shakespeare?" he asked.

Mertz held his ground, however, insisting that Frederick's sign was not disruptive, and "a non-disruptive message has to be tolerated."

Though the justices seemed unsure of the limit on students' right to free speech, they sounded certain they will shield the principal from being sued.

In the past, the court has said public officials can be held liable for paying damages if they violate someone's "clearly established" rights under the Constitution. In the case from Alaska, the 9th Circuit judges said principal Morse had violated the student's clearly established right to free speech.

"You think it was clearly established--so she should have to pay out of her pocket!" Roberts said to attorney Mertz.

Souter noted that the back-and-forth argument in the court today showed the 9th Circuit was wrong on that point. "We've been debating this for 50 minutes," he commented. If nine justices of the Supreme Court are uncertain of the reach of the First Amendment in this area, how can a school principal be punished for getting the wrong answer, he asked.

A ruling in the case, Morse vs. Frederick, will be handed down later this spring.

david.savage@latimes.com

[AnneseeKels]

Are bongs themselves illegal?

If not then (following this specious logic) the school would also have to prosecute anyone who said "Flick my Bic" (could be drug paraphenalia!).

Some people really need to get a sense of humor.

[ReneCM]

Are bongs themselves illegal?

http://149.101.1.32/ndic/pubs6/6445/6445p.pdf

And to think I once worked in a head shop...

[Vemnagelignc]

The way around that ^^^ clearly ridiculous law is to use an apple or a potato or a carrot -- all of which -- when hollowed out -- can be used as a fantastic pipe which cools the smoke ...

Or so I've been told.