JUSTICES TO HEAR LANDMARK FREE-SPEECH CASE

Defiant Message Spurs Most Significant Student 1st Amendment Test in Decades

The most important student free-speech conflict to reach the Supreme
Court since the height of the Vietnam War hinges on a somewhat
absurd, vaguely offensive, mostly nonsensical message of protest.

Bong Hits 4 Jesus.

That is the slogan that a defiant high school student named Joseph
Frederick fashioned with a 14-foot piece of paper and a $3 roll of
duct tape. His goal was partly to get on TV as the Olympic torch
passed through his town of Juneau, Alaska, and mostly to get under
the skin of his disciplinarian principal, Deborah Morse, with whom
he had a running feud.

It worked, at least the irritating-the-principal part. Morse crossed
Glacier Avenue to Frederick's position across from the school and
confiscated the banner. She later suspended him for 10 days.
Frederick, a high school rebel who at the time was fond of quoting
Thoreau and Voltaire, said Morse tacked on the last five days when
he paraphrased Thomas Jefferson's admonition that "speech limited is
speech lost."

In the five years since, a classic conflict between
a second-semester senior impatient to move on in the world and his
frazzled principal trying to maintain order has become an
only-in-America battle spawning numerous lawsuits, conflicting court
rulings and changes that shook the lives of its participants.

Now, a wide range of interested parties has assembled for what they
see as an epic Supreme Court battle, which will be heard on Monday.

The American Civil Liberties Union has been on Frederick's side from
the jump, joined by a diverse liberal and conservative coalition of
civil rights, constitutional law and religious organizations.
Kenneth W. Starr, the independent counsel during the investigation
of President Bill Clinton, has volunteered his time to the Juneau
School District, and school boards nationwide, plus the Bush
administration, are supporting Morse and the school district.

Morse v. Frederick asks the justices to weigh the court's famous
1969 ruling that students do not "shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate" against
more recent decisions acknowledging a school system's ability
to create rules that maintain order and protect students from
messages deemed harmful.

In this case, the school board maintains that Frederick's slogan
encouraged smoking marijuana. But other school districts, especially
in light of school shootings and other violence, have restricted
clothing and speech that they thought could cause disruption or violence.

Both sides equate an adverse ruling with cataclysmic results.

The "extraordinarily broad claim" asserted by the government, said
ACLU national legal director Steven R. Shapiro, "would in effect
overrule the entire architecture of student speech law that the
Supreme Court has so carefully constructed over the past 40 years."

Morse's brief, written by Starr and a team of pro bono lawyers at
the firm of Kirkland and Ellis, said ratification of Frederick's
victory in the appellate court would make all the more daunting "the
vital task of teachers, administrators and volunteer school
board members in attending holistically to the needs of millions of
students entrusted every school day to their charge."

Frederick was one of them, five years ago, though he was not a
particularly happy student at Juneau-Douglas High School. One day,
he refused a vice principal's order to leave a student commons area
where he was reading Albert Camus, and the police were called. The
next day, he remained in his seat while others stood for the Pledge
of Allegiance and was sent to the principal's office. He described
it all in a mini-treatise -- "This is a story of a high
school senior who refused to bow down in submission before
an authority . . . ." -- he posted on the Internet.

He planned his ultimate protest for Jan. 24, 2002, the day the
Olympic torch was scheduled to pass through Juneau, part of a
50-state relay leading up to the Salt Lake City Olympic Games.
Frederick said he had seen the phrase "Bong Hits For Jesus" on a
sticker on a snowboard.

"To me, it's absurdly funny," Frederick, now 23, said in a recent
conference call with reporters organized by the ACLU. "The phrase
was not important. I wasn't trying to say anything about religion. I
wasn't trying to say anything about drugs. I was just trying to say
something. I wanted to use my right to free speech, and I did it."

While that right was clearly established by the court four decades
ago, subsequent decisions have allowed some restrictions, including
those on speech considered indecent enough to disrupt a school's
mission, and some content in school newspapers.

Frederick's case presents unusual facts for the justices to
consider. For one thing, he was 18 at the time of the event, and he
was careful not to display his protest message on school grounds. At
least one non-student was among the group holding the banner,
and his attorneys contend that even if his message was considered
pro-marijuana, debates about legalizing the drug are a legitimate
topic of political discussion in Alaska, where the state high court
has ruled that adults have the legal right to possess small amounts
of the drug.

Even school officials acknowledged that Frederick's actions were not
disruptive. Students throwing snowballs and plastic soda bottles at
one another got more attention.

But the school board says Frederick's protest happened during a
school-sponsored event -- the entire student body was released for
the parade, and the cheerleaders and pep band entertained. "It was a
field trip," Starr says, even if it occurred just outside the
school's doors. And in his brief, he argued, "student free speech
rights . . . appropriately yield when it comes to promoting illegal
substances."

A federal district judge relied on the court's more recent decisions
to dismiss Frederick's lawsuit against Morse and the school board
that backed her decision. But the U.S. Court of Appeals for the 9th
Circuit said that the 1969 decision in Tinker v. Des Moines
Independent Community School District from which the "schoolhouse
gate" language is drawn was the most important and that government
officials cannot punish speech with which they disagree. That court
held Morse personally liable for violating Frederick's rights, a
finding that has caused consternation among educators nationwide.

Morse is now an administrator with the Juneau School District, and
Superintendent Peggy Cowan said the district's pursuit of the case
was necessary. "The district backed her decision, and we were sued,"
she said of Morse. It sounds like a cliche, she said, "but it's the
principle of the case that's important."

Frederick, too, has learned much about the legal system. He sued the
Juneau Police Department for a series of alleged harassment that
occurred after the banner incident and received a settlement from
the city. Coincidentally, his father, Frank Frederick, worked for
the company that insured the school district and sued after he
claimed that he was demoted and then fired for not pressuring his
son to drop his lawsuit. A jury believed him, and he received a
settlement of nearly $200,000.

Joseph Frederick was arrested while attending college in Texas for
distributing marijuana. "I never professed to be perfect or a
saint," he said in the conference call with reporters.

Father and son are now in China, where Joseph Frederick teaches
English to Chinese students and studies Mandarin. He has not brought
up his case with his students as a way to discuss freedom of speech
or the American justice system. "I'm an English teacher -- I don't
teach constitutional law," he said.