March 19, 2007

"This is not a case about drugs or drug policy. This case is about freedom of speech and teaching our young people the importance of free speech."

Here's an early report on the oral argument today in Morse v. Frederick -- better known as the "bong hits 4 Jesus" case.

More on the oral argument later. For now, here's Linda Greenhouse's preview of the case.
As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Mr. Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

Mr. Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, “to be meaningless and funny, in order to get on television.” Ms. Morse found no humor but plenty of meaning in the sign, recognizing “bong hits” as a slang reference to using marijuana. She demanded that he take the banner down. When he refused, she tore it down, ordered him to her office, and gave him a 10-day suspension.

Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Greenhouse highlighted the way religious groups are supporting the student. (Note that Kenneth Starr represents the school):
The Juneau School Board’s mission includes opposing illegal drug use, the administration’s brief continues, citing as evidence a 1994 federal law, the Safe and Drug-Free Schools and Communities Act, which requires that schools, as a condition of receiving federal money, must “convey a clear and consistent message” that using illegal drugs is “wrong and harmful.”

Mr. Starr’s main brief asserts that the court’s trilogy of cases “stands for the proposition that students have limited free speech rights balanced against the school district’s right to carry out its educational mission and to maintain discipline.” The brief argues that even if Ms. Morse applied that precept incorrectly to the facts of this case, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.

The religious groups were particularly alarmed by what they saw as the implication that school boards could define their “educational mission” as they wished and could suppress countervailing speech accordingly.

“Holy moly, look at this! To get drugs we can eliminate free speech in schools?” is how Robert A. Destro, a law professor at Catholic University, described his reaction to the briefs for the school board when the Liberty Legal Institute asked him to consider participating on the Mr. Frederick’s behalf. He quickly signed on.


Freder Frederson said...

You know you are in trouble when both the Liberty Legal Institute and the ACLU are against you.

David said...

I wonder what the coversation would be about if the young lad would have written;

"Bong hits for Muhammad!"

C.A.I.R, ACLU, and politcally correct speech! I am so confused!

ShadyCharacter said...

David, that would be "Hate Speech", which is not covered by the First Amendment. You need to keep up with our living breathing evolving constitution!

What if it said "F*****s for Muhammad"?

What if it was held by a gay students group protesting the treatment of gays under Islam? Hate speech or not?

That's going to be the real entertainment of the next couple of decades - dueling greivance mongers!

Sloanasaurus said...

True. We better protect free speech now before Universities start kicking kids out of school for arguing that global warming is a hoax.

Ernst Blofeld said...

BTW, Elizabeth Wurtzel has a piece in the WSJ on the AutoAdmit fracas.

The buried lede is that Wurtzel is in Yale Law School. Be afraid.

An Edjamikated Redneck said...

Haven't First Amendment rights been said to reside with the publisher, not the author? In as much that this was a school sponsored event; shouldn't this be an issue of the student using the school's imprimatur in a way they did not approve?

If the student had this banner on his front lawn and the school has it taken down and the student is punished, that would be a violation of his rights; this is not.

I don’t care what the banner said (even if it was a ‘John 3:16’ one) the student had no right to use the school’s name to publish anything they did not approve of.

PatCA said...

Holy moly, I can't wait to live in an America where Nambla and goofy Jesus-baiting doper children are the heroes of the absolute free speech movement!

Isn't anything still sacred? (Sure, ask CAIR.)

Hoosier Daddy said...

Well there is free speech and there is ‘culturally insensitive’ speech which generally translates into ‘hate speech’.

What if it was held by a gay students group protesting the treatment of gays under Islam? Hate speech or not?

Well don’t hold your breath. Trashing Christianity tends to result in some disagreeable murmuring among the Christian world whereas your scenario would result in rioting in some Muslim nation and the protestors threatened with death.
I tend to think that free speech restrictions will depend on the level of violence or destruction that they can potentially produce. As long as Christians don’t start firebombing the local Starbucks and demanding the heads of those who want bong hits for Jesus I think it is safe to say your free speech won’t be curtailed in the same manner if you had say, a similar banner saying “Bong Hits for Mohammed’ unfurled in downtown Dearborn, MI.

Joe said...

No matter how many times I read about this case, I am left baffled as to why anyone would side with the school. The student wasn't on school property nor was he acting in the name of the school. If anything, he should have been applauded for taking initiative.

Unfortunately, this type of overstepping by schools is becoming increasingly common. Some school districts have asserted the right to censor student blogs, even though they aren't published on school web sites!

Dr. Helen recently cited a good article on the infantilization of adolescents, to which I responded all of society is being slowly infantilized. This is yet another example.

aquariid said...

How I feel about something and a fair, objective analysis of it are often different. I tend to react against authority and strongly resent control. I have an emotional affection for the limits that the constitution places on governmental power.

The free speech rights of minors are not identical to the rights of adults. If the youth in question had simply been clowning and posing for the camera (which he claims was his intent in holding up the banner) and a teacher had told him to stop it and behave appropriately few people would think that his rights had been violated. If parents are expected to use their good judgement in controling the public and private behavior of their children then obviously teachers are expected to do the same. The question shouldn't be about drug policy, it should be about a teacher's responsibilty to foster appropriate behavior in students. Since the student admits that he was not trying to make a heart felt statement on a political or social issue but merely clowning around he has less of a case. Since the school board claims the teacher was trying to further the political/social policy of the school, they have less of a case.

George said...

So if a child goes on a field trip to, say, a museum or zoo or Congress the child and his friends could make political statements incidental to the trip?

For example, they could hold up banners protesting the treatment of zoo animals? Or hold up signs condemning controversial art? Or shout "Bush Stinks!" or "Hillary stinks!" in downtown D.C.?

Isn't that not only disruptive of the purpose of the trip but also an activity that could endanger the children, if a bystander reacts hostilely (physically) to their political statements?

Should teachers now have to stand idly by while a few students make 'speech' interfering with the conduct of a field trip?

Joe said...

George, this wasn't a field trip or an activity sponsored by the school in any way. The students were given the day off.

(BTW, one of my oldest daughter's favorite things to do in High School was to wear T-Shirts with very obscure alcohol company logos on them. Some of her teachers got a real kick out of it; it was a certain vice-principal who had no sense of humor.)

An Edjamikated Redneck said...

Joe, i have to argue with your assessment.

The students were allowed off of school grounds for the specific purpose of watching the torch pass by- they were not given time off of school. By my definition of a field trip (leaving school grounds en masse for a specific purpose and destination) they were on a field trip.

BrianOfAtlanta said...

Joe, the school band was there playing, and the cheerleader squad was there as well. Sounds like a reasonable case can be made that it was a school-sponsored event.

On a different note:

Why all the focus on the religious message in the banner? Isn't the school's case based on its alleged promotion of drug use? My question would be whether

"Bong Hits for World Hunger!"

would have received the same reaction from the principal.

Joe said...

I still have to disagree with the claims that it was a school sponsored event. The fact that there was no overriding supervision overwhelming supports this. (It appears to me that claims this was a school sponsored event were made only after the fact; when the event was originally planned, the school made no pretense whatsoever that it was sponsored by the school and, as I said, the lack of following protocols for such events support this view.)

BTW, all the accounts I've read indicate that the cheerleaders and band members attended on their own accord.

Revenant said...

By my definition of a field trip (leaving school grounds en masse for a specific purpose and destination) they were on a field trip.

The principal of my high school died when I was in 10th grade. The school gave those students who wished to attend the funeral time off from school to do so. It was not "a field trip to the local Catholic Church".

The "en masse" is irrelevant. Schools regularly give students excused absences for specific periods of time for special circumstances (e.g., doctor's appointments). The students are not under school supervision during that time. That's what happened here.

Freder Frederson said...

For example, they could hold up banners protesting the treatment of zoo animals? Or hold up signs condemning controversial art? Or shout "Bush Stinks!" or "Hillary stinks!" in downtown D.C.?

Those are all good law school exam hypotheticals. Although I will note that as clearly political speech the last one would almost certainly be protected speech.

reader_iam said...

I have to come down on the side of those arguing that this really wasn't a school-sponsored event in the sense it's generally used.

THAT SAID, I am still chuckling over the whole "this case is about...teaching our young people the importance of free speech," simply in terms of the statement itself.


Your average elementary student, let alone an older one, is well aware of his "right to free speech." Just for starters: watched any kids' programming lately? There are plenty of references. Talk to your average teachers: I'll bet they've encountered a recitation of "rights" on more than one occasion. Talk to parents, for pete's sake.

Young people nowadays are WELL AWARE of free-speech rights.

The concept of time and place? That not all thoughts must be expressed? The responsibilities that go along with rights?

Not so much.

Revenant said...

I am still chuckling over the whole "this case is about...teaching our young people the importance of free speech," simply in terms of the statement itself.

Young people nowadays are WELL AWARE of free-speech rights.

Good point. It would have been more accurate to say "this case is about teaching our older citizens the importance of free speech".

They, it would appear, are the ones who need education. :)

Galvanized said...

Had this group's banner said anything at all, it seems it still would be within the teacher's scope of judgment to demand that it be taken down. The gathering was for the passing through of the Olympic torch, and it was disrespectful to distract from the purpose of the gathering. Honestly, school officials just can't win anymore. This explains why so many are opting for homeschooling. I am extremely protective of individual rights and free speech, but what these foolish jesters pulled did not fit the context and, they claim, had no message that they intended except to get on TV, so there goes their argument. As for religious groups backing them up --'s outright disrespect to authority, litigious abuse of tax dollars, and supportive of foolish pursuits, so what does religion have to comment on? Libertarians maybe, but not catholicism. And where in the heck are these boys' parents? I would be so ashamed.

reader_iam said...

it was disrespectful to distract from the purpose of the gathering

Indeed it was. But I fervently hope the day that we decide what constitutes free speech based on the quality of "disrespectful" is far, far, far in the future. Better yet, never comes to pass.

Think about that statement in the context of other controversies over speech. Do you want "disrespectful" to be the standard?

I think what this young man did was stupid. I think it was disrespectful. I think it was self-centered in that he didn't bother to think that the event had a lot of meaning to a lot of people, that his school and friends and community were going to represented in the press, and that his actions were going to be seen as part of that. I think--no, I know--that if my own son had pulled that, he'd be treated to the exercise of my own free speech (funny, my son and I just had a conversation on that exact subject the other day), and more. I am very sympathetic indeed to some of the challenges of running public schools where kids too often are very aware of their rights without understanding that (or being permitted to ignore, with their parents complicity, the fact that) rights imply responsiblity. There are a number of reasons my child is in a private school.

But I honestly can't, however much I might like to, see attendance at this event as sponsored by the school. I think the analogy to a field trip is faulty one. Like it or not, I think this kid was, in the moment, a private citizen attending a public event not under the supervision of the school. Given past legal rulings, he had the "right" to be an ass and an embarrassment to his family (though the reality of that seems questionable), school and community. Whether I, or anyone, thinks it's a little questionable to provide the same rights to kids as adults is a different issue and beside the point, in my view.

To be clear, would I have filed suit on behalf of my son? It's extremely hard for me to imagine that, for a number of reasons which I suspect most readers would prefer I not go into (if only due to the already lengthy quality of this comment). But that is also beside the point.

kindlingman said...

A highschool prank goes awry and everyone treats it like its a first amendment case of governmental oppression. Give me a break.
The boy is in China now studying Mandarin and teaching English. I don't think he is worried about free speech, do you?
What's the hubbub, bub?
Boy played hookey that day. Was silly enough to go to school and display provocative sign. Was suspended for content of sign. School board upheld suspension. Local community standards should prevail.
If you can show me a pattern of malfeasance on the part of the school board, then take it to the Supreme Court but please don't take a high school prank there.

reader_iam said...
This comment has been removed by the author.
reader_iam said...

Got a question. If instead of unfurling a banner while attending the event, that kid had been abducted, or hit by a car, or what have you, do you think his parents would have grounds for suing the school and that principal for failure to supervise and protect one of its charges at an official school event? Would the school agree that it was responsible that day for supervision because the kid was on a field trip?

If not, why not?

Galvanized said...

I assumed that the school officials were still responsible for the students' behavior off campus given that it was during school hours. If it was a general "let out" from school during regular school hours with parental notification, and students were not specifically being supervised, then I guess that it was indeed an event where the school officials had no jurisdiction (if that's the word). Still, when free speech is exercised with no intended message in mind (as this boy claims) then couldn't it be considered a public disturbance at a public event? If not, people can just interrupt any event in whatever way they wish and cite the right to free speech -- running across a soccer field while others play, swimming in a public fountain, setting up a mic in a public park to sing. I thought one could be forcibly removed from those situations. So what distinguishes a public nuisance from a public disturbance?

George said...


Re: the downtown DC hypo....

If what the students do disrupts what the teachers have planned on the field trip, I don't see how that's protected speech.

For example, the kids' speech a) may, in the opinion of the teacher, cause a ruckus with bystanders, potentially endangering the kids or other children who aren't participating; or b) the kids want to stand and chant, delaying the classes' schedule.

In either case, the teachers owe a duty to the parents (to keep the kids safe) and to the other kids (to meet the schedule) that should over-ride the other students' limited right to protest.

I'm not unsympathetic to the students. When I was in high school, a group of us went off campus and marched with placards about an issue that was serious (at least to us!). Long story short--the school checked it out, saw that there was very minimal risk of physical harm to us or others, and let us continue. Had the school thought we were being goofballs (like the bong-hit kids), I think they would have rightfully shut us down.

Revenant said...

As for religious groups backing them up --'s outright disrespect to authority, litigious abuse of tax dollars, and supportive of foolish pursuits, so what does religion have to comment on?

That's an easy one -- under the argument being used by the school to defend the teacher's actions, the teacher would have been within her rights to rip up a banner that said (for example) "God be with you", too.