Free speech on campus is debated

Times Staff Writer

High school students may have a right to free speech, but that does not include the freedom to unfurl a banner promoting “bong hits” during a school activity, the Supreme Court was told Monday.

An unusual case from Alaska tests whether principals and teachers can punish students for banners, buttons or other messages that conflict with the goals and policies set by school officials.

During Monday’s argument, former U.S. Solicitor General Kenneth W. Starr and a Bush administration attorney urged the justices to defer to school officials when deciding what messages were appropriate on and around a high school campus.

“Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation,” said Starr, dean of Pepperdine University School of Law. He represents a school principal from Juneau, Alaska, who was sued for ripping away the banner and suspending the student who unfurled it.


Permitting the banner to be displayed would be “interpreted as an encouragement of the drug culture,” Starr said.

Deputy Solicitor General Edwin Kneedler, representing the Justice Department, added, “A school does not have to tolerate a message that is inconsistent with its basic educational mission.”

But a lawyer representing the student said the right to free speech should prevail so long as the message did not disrupt classrooms or the education process. “This is a case about free speech. It is not a case about drugs,” said Douglas K. Mertz, a lawyer from Juneau.

His client, Joseph Frederick, was an 18-year-old senior in 2002 when the torch for the Winter Olympics was scheduled to pass in front of the high school. Frederick was standing on a public street as the TV cameras came into range. He and several other students then unfurled the 14-foot banner that said, “Bong Hits 4 Jesus.”

The school’s principal, Deborah Morse, ripped it away from the students and sent Frederick to the office. She planned to suspend him for five days, but when he invoked Thomas Jefferson and the 1st Amendment, she doubled the suspension to 10 days.

Frederick sued, alleging Morse had violated his constitutional rights.

A federal judge rejected his claim, but the U.S. 9th Circuit Court of Appeals in San Francisco ruled for the student and said the principal could be forced to pay damages.

No damages have been set, and the school board urged the Supreme Court to overrule the 9th Circuit.


During Monday’s argument, most of the justices seemed to lean in favor of Morse, who is no longer a principal but still works in the school district.

However, they sounded unsure where to draw a line between a student’s free-speech right and the authority of the principal.

Several also said they worried about giving school officials unchecked power to control what students say.

“I find that a very, very disturbing argument,” Justice Samuel A. Alito Jr. told Kneedler, the Justice Department lawyer. School officials could “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 the educational mission.”


Several religious rights groups filed briefs supporting the student’s free-speech right in this case. Their lawyers worry that school officials might, for example, say it was inappropriate for a student to wear a T-shirt that praised Jesus Christ.

But Starr said the court could rule narrowly and give principals the power to forbid signs and banners promoting drugs, alcohol or tobacco. “This case is ultimately about drugs,” he said.

The outcome may turn on a ruling from the Vietnam War era. In 1969, the high court upheld the right of high school students to wear black arm bands to protest the war.

Young people do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court said then. However, its opinion made clear that principals and teachers need not tolerate “disruptive” speech or protests.


But Chief Justice John G. Roberts Jr. said Monday that the student’s “bong hits” banner was disruptive. “Can’t the school decide that it’s part of its mission to try to prevent its students from engaging in drug use?” he asked.

Surely such a pro-drug message would be out of line in a classroom, added Justice David H. Souter. “Would the school be required to tolerate that sign in the Shakespeare class? ... Wouldn’t there be a substantial disruption if the kids look around and say, ‘Well, so and so has his bong sign on again.’ ”

Mertz held his ground, insisting that Frederick’s sign was not disruptive, and “a nondisruptive message has to be tolerated.”

Though the justices seemed unsure of the limits on the student’s right to free speech, they sounded certain they would shield the principal from being sued.


In the past, the court has said public officials can be held liable for paying damages if they violate someone’s “clearly established” rights under the Constitution. In the case from Alaska, the 9th Circuit said Morse had violated the student’s clearly established right to free speech.

“You think it was clearly established ... so clear that she should have to pay out of her pocket,” Roberts said in a disbelieving tone to Mertz.

Souter noted that the back-and-forth argument in the court Monday showed the 9th Circuit was wrong on that point. “We’ve been debating this for 50 minutes,” he said. If nine justices of the Supreme Court are uncertain of the reach of the 1st Amendment in this area, how can a school principal be punished for getting the wrong answer, he said.

A ruling in the case, Morse vs. Frederick, will be handed down this spring.