WASHINGTON – 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.
During Monday’s argument, Chief Justice John Roberts said the student’s “bong hits” banner was disruptive.
“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” 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.
The outcome may turn on a ruling from the Vietnam War era. In 1969, the Supreme Court upheld the right of high school students to wear black armbands 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.
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 9th U.S. Circuit Court of Appeals in San Francisco ruled for the student and said the principal could be forced to pay damages. The school board urged the Supreme Court to overrule the 9th Circuit.
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.
Justice Samuel Alito said it would be “disturbing” if principals had such broad authority to pass judgment on what students say at or near school.
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 to 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.”
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