My Turn: Another look at 'Bong Hits' case

Was Morse v. Frederick actually a victory for student speech?

Posted: Thursday, July 05, 2007

Many questions have been asked about what the Supreme Court's ruling in Morse v. Frederick, the "bong hits" case, really means.

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Like Frederick's banner, it can mean a great many things or nothing at all. The inescapable conclusion, however, is that the Juneau School District utterly failed in its goal of expanding school power over student speech.

First, the narrow ruling: A 5-4 majority ruled the school could punish someone for the display of the banner on a public street during a public event, even though the school district admitted there was no disruption of the educational process. Four of the justices reached this conclusion by creating a new category of speech that lacks any First Amendment protection, namely, student speech that promotes use of an illegal drug.

At the same time, a clear majority of the court turned back the school district's attempt to eliminate the most important legal rule protecting student speech, the 1969 Tinker v. Des Moines case in which the court held that student speech cannot be censored without demonstrating a substantial disruption of the educational process. Even the district's own attorney, Kenneth Starr, concluded that the court "ringingly reaffirmed" Tinker. And two of the majority justices noted that if there were any conceivable interpretation of the speech that makes it a political or social comment, it is fully protected by the First Amendment, which means that even in school it cannot be punished as long as it does not substantially disrupt the educational process.

So any student who wants to make a point, as Joseph Frederick did, through humor and parody, would be well advised not to be subtle. If the message is a political or social comment, make it so clear that even a Supreme Court justice cannot miss it, and the school district will be required to recognize it as protected.

As for the district, the situation remains almost entirely the same as before the decision: Any nonobscene and nondisruptive student speech, banner or T-shirt is protected, and if it has an arguable political or social message - to which I would add any religious or artistic intent - it cannot be punished, even if it mentions an illegal substance. If some future principal were to overreact to an ambiguous sign by punishing the student, as did Morse, the principal would be in court, defending his or her conduct under the Tinker standard.

There is a darker side to the ruling. When the four justices who carved out an exception to the First Amendment for student speech advocating illegal drug use, it for the first time made an entire subject taboo.

Past restrictions on speech have been those regulating the character of the speech - for example, censoring obscene materials and speech that disrupts because of the place or the manner in which it occurs.

Now we have a new category: Speech that can be punished simply because the Supreme Court finds the topic itself too sensitive to allow. We should ask, what topics might a future Supreme Court find too sensitive to allow in schools or on the streets? National security? Criticism of the president? Criticism of minority religions? The ruling in Morse v. Frederick cracks open the door to a pernicious and dangerous doctrine, brought to us, unfortunately, by the Juneau School Board's insistence on trying to cut back student rights.

One other unfortunate result occurred in this case. The majority ruled against Joseph because, it said, he did not have a serious political purpose behind his banner. To reach this result, the court had to ignore the clear testimony in the record that showed Frederick did have a serious intent - to protest the state of free speech in the school system and the community at large. Even the trial court found he had such a purpose. But to make its political point, the majority had to ignore this evidence.

What can Frederick do at this point? The Supreme Court resolved only the issue of whether the Constitution protects his free speech. That leaves the issue of whether the Alaska Constitution has greater free speech protections. In the coming weeks, Frederick will decide whether to keep litigating over the Alaska legal question. In the meantime, he can take some comfort from knowing that, as confusing as the Supreme Court decision was, it resoundingly rejected the school district's attempts to restrict student free speech rights.

• Douglas K. Mertz is a Juneau attorney who represents Joseph Frederick in his First Amendment litigation.

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