Monday, March 26, 2007

Bong Hits 4 Free Speech

The Seattle Times has an uncharacteristically good editorial on the high school free speech case heard last week before the Supreme Court, Morse v. Frederick. The case, if you've not heard of it, involved an 18 year old Alaskan high school senior unfurling the home-made banner (shown in the picture on the left) as the Olympic Torch was carried by. The kid and the principal apparently had a relationship not unlike Bart Simpson and Principal Skinner. From the SCOTUSblog:
The core facts that the two sides can agree upon are these: when the Olympic torch was being carried along Glacier Avenue in Juneau, Alaska, on January 24, 2002, 18-year-old Joseph Frederick held up a 14-foot banner with the message, “BONG HITS 4 JESUS.” (“Bong hits” is slang for smoking marijuana.) Glacier Avenue runs in front of Juneau-Douglas High School, where Frederick was enrolled as a senior. School Principal Morse crossed the Avenue, and demanded that the sign be taken down; Frederick refused, and the principal grabbed the sign and crumpled it. Later, Morse suspended Frederick for ten days, citing a variety of infractions of school rules. The Ninth Circuit found a violation of Frederick’s First Amendment rights, and found that the law was so clear on this issue in January 2002 that the principal was not entitled to legal immunity to money damages.
The school claims that this was essentially a "field trip," but it wasn't. It was not supervised. It was off school grounds. The event wasn't sponsored by the school. The kid was skipping school anyway, and showed up to the rally on his own, and made the banner in his garage. As the Times put it:

With children under its charge, and particularly on its property, a school needs to have a degree of authority, including over speech. That is why, for example, The Seattle Times opposes the bill sponsored by Rep. Dave Upthegrove, D-Des Moines, to give editorial control of high-school newspapers to the students.


But somewhere comes a limit to the school's authority. Outside school grounds, where politics meet the streets, school regulations fade and the rules are the same as applies to citizens generally, including free speech. Within the schools, access to free speech — from gang clothing to graffiti to pronouncements at school ceremonies — is necessarily within the realm of controlled speech.

Well said.

My only beef with the article (and the rest of the media reports surrounding the case) is the worry about "overruling Tinker v. Des Moines", which I don't think this case necessarily could do. Even if the Court sides against the former student, the compromises that would have to be reached in order to get those votes, along with the Chief Justice's desire for narrow rulings, would probably merely follow existing caselaw which permits schools to control obscene speech. Whatever "Bong Hits 4 Jesus" actually means, it seems difficult to call it "political" like the black armbands clearly were in Tinker, which means it's distinguishable.

But I hope the right outcome is achieved - that this twerp's obnoxious action done for no other reason than to antagonize his principal (and make no mistake, this is ALL it was) is found to be protected.


Jason Sykes said...

i wholeheartedly agree. administrative power ends at the playgrounds edge. or something like that.

will be interesting to see if there are multiple opinions on this case, i'm kind of thinking there might be as many as 2 or 3 concurrences and dissents. should be a good test of CJ Roberts' ability to get other Justices to buy into the Narrowly Tailored Decisions approach.

Laura Arras said...

I'm hoping for a Larry Flynt-type unaniomous opinion here. This seems like a flat-out free speech issue. I can't wait!

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