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Court probes student free speech limits

Rights may hinge on decision in 'Bong Hits' case

Posted: Tuesday, March 20, 2007

WASHINGTON - The Supreme Court dissected a Juneau teenager's sign Monday and tried to divine whether its "Bong Hits 4 Jesus" message was advocating drug use or just talking nonsense.

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Students' free speech rights could hinge on the outcome of the case.

Joseph Frederick was a high school senior when he held up the 14-foot "Bong Hits" banner five years ago on a sidewalk across from Juneau-Douglas High School. He said he was testing his constitutional right to free speech. His principal thought he was delivering a pro-drug message and suspended him.

If the justices side with former principal Deborah Morse, the result could be greater restrictions on student speech.

"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 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 Vietnam era.

Morse, now a Juneau schools' administrator, was at the court Monday. Frederick, teaching and studying in China, was not.

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 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."

After the arguments, two dozen sign-carrying demonstrators chanted, "Teachers should teach, not limit free speech."

A decision is expected by July.



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