Justices may take centrist view of ‘Bong Hits’ case

Tuesday, March 20, 2007

WASHINGTON — With Mary Beth Tinker watching from the audience, the Supreme Court debated yesterday whether to narrow the Tinker precedent she generated, by giving public school officials new power to censor drug-related student speech.

The justices heard arguments in Morse v. Frederick, in which Juneau, Alaska, high school Principal Deborah Morse suspended student Joseph Frederick for unfurling a banner with the message “BONG HITS 4 JESUS” outside the school. Frederick says the sign was nonsensical, meant as a First Amendment experiment, but principal Morse interpreted it as a pro-drug message that undermined the school’s campaign against illegal drug use.

The 9th U.S. Circuit Court of Appeals, invoking the 1969 Tinker v. Des Moines decision, ruled for the student, declaring that a school district was “not entitled to suppress speech that undermines whatever mission it defines for itself.” Under Tinker, student speech is protected unless it is disruptive or invades the rights of other students.

By the end of yesterday's hourlong argument before the Supreme Court, two things seemed clear on both ends of the spectrum of possible outcomes.

First, the Court balked at giving schools a broad charter to censor any speech that merely falls outside the school’s educational mission. But second, the Court also seemed resolved that Principal Morse — and school officials like her in the future — should not be held personally liable for misinterpreting the welter of nuanced and conflicting Court precedents on student free speech.

Somewhere in the middle is where the Court will likely rule, with a nod toward both student speech and the need for school discipline. And the push toward center ground may come from the Court’s newest justice, Samuel Alito Jr., who in a series of questions made clear his concern about giving school officials too much power to restrict student speech. If student speech can be censored for the sole reason that it is contrary to a school’s educational mission, Alito said, schools can simply expand their mission statements to justify censoring any speech they don’t like.

“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,” Alito said.

Alito’s stance seemed to echo a ruling he wrote in 2001 as a judge on the 3rd U.S. Circuit Court of Appeals. In Saxe v. State College, Alito struck down a college speech code that banned verbal harassment, defined to include negative speech about “religious traditions,” values and race. “Such speech, when it does not pose a realistic threat of substantial disruption, is within a student's First Amendment rights,” Alito said in Saxe.

Alito’s mention yesterday of fundamental values may also have been a nod to the arguments that Christian legal organizations have made, perhaps unexpectedly, in support of Frederick’s right to display the bong banner.

In their legal battle to allow more religious expression in public schools, Christian groups have relied successfully on free-speech precedents. As a result, the American Center for Law and Justice and the Alliance Defense Fund, two of the leading Christian legal advocacy groups, are worried that if the Court sides with the Juneau principal and narrows Tinker, religious expression will also be vulnerable.

“Like the speech at issue in this case, religious speech can be controversial,” the Alliance Defense Fund told the Court in a brief. “As such it is often the target of censorship in our nation’s public schools.”

In part because of Alito’s comments and the general skepticism the Court showed toward a broad anti-speech decision, former solicitor general Kenneth Starr, the lawyer for principal Morse, urged a narrower position. “This case is ultimately about drugs and other illegal substances,” Starr insisted, pointing toward what might amount to a drug-war exception to the First Amendment for students.

School officials, Starr argued, should be given special deference in the area of drugs to move against pro-drug speech — even messages like Frederick’s banner, which are open to varying interpretations. Deputy Solicitor General Edwin Kneedler, also arguing on the principal’s side, suggested a broader mandate for school officials to censor student speech advocating illegal conduct in general.

Starr and Kneedler almost certainly won over Chief Justice John Roberts Jr., who asked incredulously, “Can’t the school decide that it’s part of its mission to try to prevent its students from engaging in drug use?” At times, Roberts seemed ready to give even more power to school officials outside the area of drugs than Starr and Kneedler were asking for. More than once, Roberts sarcastically said that teachers, not students, are the ones who should set a school’s agenda.

Considerable argument time was spent mulling over disputed facts of the case, which could lead to another possible resolution: remanding the case to lower courts for further fact-finding.

Several justices wondered why Morse viewed the banner as a pro-drug message at all. And it was noted that Frederick displayed the banner not on school property but across the street from the school. The incident occurred in January 2002 when the Olympic torch passed through Juneau, and students from Juneau-Douglas High School were let out of school to watch. Cheerleaders and the school band greeted the procession. When the torchbearers approached and TV cameras went on, Frederick, who intentionally avoided school property, unfurled the 14-foot banner.

Justices also weighed the significance of the fact that Frederick had not been in school that day, but went directly from his home to the gathering outside school. That, said his lawyer, Douglas Mertz, helps convert the case into one involving public speech, not student speech, at a public event, since Frederick was not at the event in his capacity as a student.

“If he had gone on his own time to the zoo and was engaging in some expressive act, and there happened to be a school group there at the same time, could the teacher with that group then have disciplined him for what he was doing?” asked Mertz rhetorically. Several justices dismissed that argument, suggesting that Frederick’s truancy should not be rewarded by giving him more First Amendment protection than he would have had if he had gone to school that day.

Justice David Souter seemed to be the most sympathetic toward student expression during the arguments, repeatedly asking Starr what was disruptive about the banner, especially in an off-campus, non-classroom setting. “What did it disrupt on the sidewalk?”

Justice Anthony Kennedy, like Alito, worried aloud about giving too much power to school officials. “Suppose you have a mission to have a global school. Can they ban American flags on lapels?”

But Kennedy also seemed to conclude that Frederick’s conduct had in fact been disruptive; such a judgment would place it in the category of speech that can be restricted even under Tinker. “It was completely disruptive of the message, of the theme that the school wanted to promote. Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school's image that they wanted to portray in sponsoring the Olympics,” Kennedy said.

Mertz held his own, insisting: “What it was was a person displaying this banner in a quiet, passive manner that didn’t interfere with anybody’s observation.”

At another point Mertz said, “This is a case about free speech. It is not a case about drugs.”

But then Roberts interjected, “It’s a case about money. Your client wants money from the principal personally.” Frederick is in fact seeking monetary damages for the constitutional violation, but “that’s by no means his object here,” Mertz said.

Other justices also seemed to sympathize with the principal on the issue of liability. Because Frederick sued her for violating his constitutional rights, she could be liable for money damages, unless she is deemed to have some level of immunity from suit. Part of that calculation involves determining whether she should have known under the law and court precedents that her action in suspending Frederick violated his free-speech rights.

Acknowledging the complexity of the precedents in this area, most justices — including Souter — seemed eager to give Morse and other school officials in similar circumstances a break.

“We've been debating this in this courtroom for going on an hour, and it seems to me however you come out, there is reasonable debate,” said Souter at one point. “Should the teacher have known, even in the calm, deliberative atmosphere of the school later, what the correct answer is?”

Frederick, now working as a high school English teacher on mainland China, did not attend the arguments.

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