For high school students, free speech is no joke

Sunday, July 8, 2007

“Bong Hits 4 Jesus” doesn’t have a hidden meaning. In fact, the phrase doesn’t mean anything at all.

But when high school senior Joe Frederick held up a banner with those now-famous words in 2002, he triggered a chain of events that led to last week’s 5-4 Supreme Court ruling drawing new lines around student free-expression rights in public schools.

Frederick unfurled his “Bong Hits 4 Jesus” message while students and faculty were gathered to watch the Olympic torch pass by his school in Juneau, Alaska.

“The phrase was not important,” he recently explained. “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.”

When the principal, Deborah Morse, asked him to take the banner down, Frederick refused. She confiscated it and later suspended him for 10 days. Frederick sued.

What Frederick believed was a nonsensical joke that he had a First Amendment right to display, Morse saw as promotion of illegal drugs in violation of school policy. On June 25, a closely divided Supreme Court sided with the principal.

The Court’s decision in Morse v. Frederick carves out what might be called “an illegal drug use” exception to student free-speech rights as defined in the 1969 case Tinker v. Des Moines Independent Community School District. School officials may now censor student speech that a “reasonable observer” would interpret as advocating the use of illegal drugs.

In a concurring opinion, Justice Samuel Alito takes great pains to underscore the narrow scope of the decision. Nothing in the ruling, he claims, restricts the right of students to comment on political or social issues, including debates about drug laws.

But the dissent, written by Justice John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg, describes the decision as a “ham-handed, categorical approach” that is “deaf to the constitutional imperative to permit unfettered debate, even among high school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

Where Alito sees a bright line, Stevens sees a slippery slope. What about speech that mentions alcohol — also a drug illegal for minors? “While I find it hard to believe,” writes Stevens, “that the Court would support punishing Frederick for flying a ‘Wine Sips 4 Jesus’ banner — which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message — the breathtaking sweep of its opinion suggests it would.”

Narrow or sweeping? We won’t know until we see how school districts apply the decision and how courts interpret it. But don’t be surprised when many school officials and judges use it to find new grounds for censoring students. If an absurd reference to drug paraphernalia can be suppressed, what’s the stopping point?

Given how messy the fallout from this decision is likely to be, school officials should focus less on how to use it and more on how to avoid future conflicts.

After all, Frederick didn’t make that banner out of whole cloth. His protest came after a series of run-ins with the administration over what he believed was unfair treatment. He claims, for example, that previously he got into trouble for refusing to stand during the Pledge of Allegiance (which is his right).

From the conflicting accounts, I don’t know what actually happened at Frederick’s high school. But I do know that far too many schools mistakenly assume that the best way to maintain discipline is to control student expression. Draconian speech codes and censored school publications may create the appearance of order, but they breed alienation, distrust and rebellion.

It may seem counterintuitive, but students are far more likely to behave well in schools that take free speech seriously. Schools where students are given meaningful opportunities to express themselves — and to participate in decision-making about school rules — are schools where high school rebels like Joe Frederick have little or nothing to rebel against.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: