‘Bong Hits’ Case May Clarify Scope of Student Speech


By Gene Policinski
First Amendment Center

What do you think "Bong Hits 4 Jesus" means?

The U.S. Supreme Court heard March 19 from lawyers for former student Joseph Frederick, who says it means nothing – and for the Juneau-Douglas, Alaska, school system that suspended Frederick for displaying it on a banner, who say it’s drug-related and disruptive.

Whatever the meaning of the "slogan," or lack of one, the case is not about bongs or Jesus – it’s about the extent to which public school officials can or should control the speech of students who attend their schools.

Former student Frederick admits he just wanted to get on TV – and to irritate his principal, Deborah Morse, when he displayed the banner in 2002 from a public sidewalk across from school property. He’s an unlikely hero for student-expression advocates: "I never professed to be a saint," Frederick told the Associated Press. ABC News reported that the self-professed non-saint, now teaching in China, had earlier been disciplined for failing to obey a teacher’s command to leave a common area and for remaining seated during the Pledge of Allegiance.

Morse, for her part, is alleged to have gone across the street after spotting the sign, up onto a public sidewalk where Frederick was standing, and to have pulled the banner from Frederick’s hands. Frederick claims in court that Morse later doubled Frederick’s initial five-day suspension when he cited free-speech principles and Thomas Jefferson, but Morse disputes that account.

Morse v. Frederick is worth tracking because of its potential to strike at the heart of a landmark 1969 landmark case in which the U.S. Supreme Court declared students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." In Tinker v. Des Moines Independent Community School District, the Court said student speech is protected unless school officials can reasonably forecast that it will disrupt the educational process. The students in the Tinker case had had worn black armbands to school to protest deaths in the Vietnam War.

The "bong" case has attracted interest and legal briefs from more than a dozen national groups, on both sides – including groups not always in agreement. A number of conservative and liberal organizations, including the American Center for Law and Justice and the Alliance Defense Fund, two of the leading Christian legal-advocacy groups, along with the American Civil Liberties Union and the Lambda Legal Defense and Education Fund, found common ground in support of open student expression. The National School Boards Association urged the Court to grant review in the case "to afford critical guidance to school administrators regarding free speech rights."

To be sure, in decisions that followed Tinker by about 20 years, the Court already has permitted school officials to regulate student speech that is vulgar, lewd or "plainly offensive," and given them greater powers to censor school-sponsored student newspapers.

Student-speech advocates warn that the ruling in Morse, if the school’s position prevails, could embolden superintendents and principals to broaden even more the scope of what they see as disruptive, and even to reach into cyberspace to discipline students for Web postings that administrators view as opposed to school policies or disruptive.

For their part, groups lining up behind the school system say that to permit Frederick’s prank is to weaken the ability of educators to maintain order, educate and protect students in a post-Columbine-shooting era.

And because Frederick is seeking monetary damages, saying Morse should have known she was violating his basic constitutional rights, the argument is made that every school authority will be fearful of taking action against a disruptive student because of potential personal liability.

At the very least, the case could offer a 21st century update to the rules by which students and administrators will operate – the first such time in 20 years the Court has revisited a trio of such cases that began with Tinker and ended in the 1980s. And it certainly could have an impact on a host of other controversies involving student speech that have bubbled up in recent months, from T-shirt messages critical of President Bush to Web postings that attack teachers to student newspaper editorials that discuss gay rights.

And, as Justice Samuel Alito noted during oral arguments, the upcoming decision in Morse also may affect yet another contentious issue for students and administrators: the extent to which students may express their religious views in public schools.

That’s a lot of serious issues for a case with a silly nickname.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: firstamendmentcenter.org. E-mail: [email protected].