'Bong hits' ruling sides with district

Justices say Juneau principal had a right to suspend student

Posted: Tuesday, June 26, 2007

In a 5-4 decision, the U.S Supreme Court ruled that former Juneau-Douglas High School Principal Deborah Morse was within her rights to suspend a student and suppress a banner that said "Bong Hits 4 Jesus."

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Any message "perceived to promote drugs will be determined to be controlled speech," Morse said in a teleconference after the decision. "It will be illegal."

"This case eliminates the confusion over whether the First Amendment permits regulation of student speech when such speech is advocating or making light of illegal substances," school Superintendent Peggy Cowan said.

Doug Mertz, the Juneau attorney who argued the case of former student Joseph Frederick, said the court allowed a free-speech issue to be turned into a drug debate.

"This is an extremely dangerous precedent," Mertz said. "This is the first time a subject matter is outside the protection of the First Amendment."

Mertz said he and Frederick would confer about a final option, referring the case to the Alaska Supreme Court.

"We are going to look at it very closely," Mertz said. "We believe the state constitution offers greater protection."

Mertz said the decision to seek the state's high court opinion rests primarily with his client. Frederick was flying home from China when the decision was handed down.

The Supreme Court tightened restrictions on student speech by siding with Morse. The majority opinion and the school district repeatedly referred to the "Bong Hits" banner as "pro-drug."

Frederick's argument asserted his right to express an opinion, even a nonsensical one.

The court's dissenters said the decision in Morse v. Frederick amounted to discrimination against specific viewpoints.

"The court does serious violence to the First Amendment in upholding - indeed, lauding - a school's decision to punish (a student) for expressing a view with which it disagreed," Justice John Paul Stevens wrote.

"The court's ruling ... creates a drug exception to the First Amendment," said Steven Shapiro, national legal director for the American Civil Liberties Union.

The case was one of the most closely watched school free-speech cases since 1969, when the Supreme Court ruled that Iowa high school student Mary Beth Tinker could wear a black armband opposing the Vietnam War.

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Now a nurse practitioner in St. Louis, Tinker was in the courtroom during the March 19 oral argument in the "Bong Hits" case.

On Jan. 24, 2002, the Olympic Torch Relay was run through the streets of Juneau. The event attracted news coverage as well as the sponsorship of companies that included Coca-Cola. As the runners passed along Glacier Avenue, 18-year-old Joseph Frederick and several fellow students standing on a public sidewalk unfurled their "Bong Hits 4 Jesus" banner.

"The content of the banner was less important to us than the fact that we were exercising our free-speech rights to do a funny parody," Frederick later testified.

Principal Morse saw the banner, crossed the street and took it from Frederick's hands. The teen began quoting Thomas Jefferson; she suspended him for 10 days.

The Supreme Court's majority decision said: "A principal may restrict student speech at a school event when speech is reasonably viewed as promoting illegal drug use."

Mertz said the Supreme Court applied a "view point restriction" and "finessed the issue by limiting it to a pro-drug issue."

Frederick held that he was not at a school-sponsored event. On that day, the Olympic Torch passed down Glacier Avenue and past his large banner. Frederick argued that since he did not attend school that day he felt fully within his rights to speak as he did from public space along the relay route. He was not on school grounds.

The Supreme Court flatly rejected Frederick's claim, saying JDHS student conduct rules applied because he stood with fellow students at a sanctioned event directing his banner at the school.

Chief Justice John Roberts delivered the majority opinion.

"The large banner was easily readable by the students on the other side of the street," he said.

Morse thanked the Supreme Court for supporting a principal's ability to control non-protected speech.

"The message on Frederick's banner is cryptic," Roberts said in the majority opinion. But the school principal who suspended him "thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."

Morse also thanked the justices for language that absolved her from personal liability.

Morse's order that students take down the banner and the suspension of Frederick has been heard five times, from the school district to the highest court of the land.

Only the 9th Circuit Court of Appeals sided with Frederick.

Mertz said the state constitution offers more protection from censorship than the federal constitution, "unless there is a compelling reason." Such a compelling reason would be disruption to a classroom, he said.

"The school district admits there was no disruption of the educational process," Mertz said.

The district, and others across the nation, now may have a difficult job of figuring out what mention of alcohol or drugs to regulate - from T-shirts to private conversations.

Cowan said the district holds student speech in high esteem. She said the "Bong Hits" decision "will not affect student debate."

"If the court can do it here they can also do it in other cases where the court feels do not deserve protection," Mertz said.

Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.

• Contact Greg Skinner at 523-2258 and greg.skinner@juneauempire.com.



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