FOR HIGH SCHOOL STUDENTS, FREE SPEECH IS NO JOKE

Inside The First Amendment

"Bong Hits 4 Jesus" doesn't have a hidden meaning.

In fact, the phrase doesn't mean anything at all.

But when high school senior Joe Frederick held up a banner with those
now-famous words in 2002, he triggered a chain of events that led to
the 5-4 Supreme Court ruling drawing new lines around student
free-expression rights in public schools.

Frederick unfurled his "Bong Hits 4 Jesus" message while students and
faculty were gathered to watch the Olympic torch pass by his school in
Juneau, Alaska.

"The phrase was not important," he recently explained. "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."

When the principal, Deborah Morse, asked him to take the banner down,
Frederick refused. She confiscated it and later suspended him for 10
days. Frederick sued.

What Frederick believed was a nonsensical joke that he had a First
Amendment right to display, Morse saw as promotion of illegal drugs in
violation of school policy. On June 25, a closely divided Supreme
Court sided with the principal.

The court's decision in Morse v. Frederick carves out what might be
called "an illegal drug use" exception to student free-speech rights
as defined in the 1969 case Tinker v. Des Moines Independent Community
School District. School officials may now censor student speech that a
"reasonable observer" would interpret as advocating the use of illegal
drugs.

In a concurring opinion, Justice Samuel Alito takes great pains to
underscore the narrow scope of the decision. He claims that nothing in
the ruling restricts the right of students to comment on political or
social issues, including debates about drug laws.

But the dissent, written by Justice John Paul Stevens and joined by
Justices David Souter and Ruth Bader Ginsburg, describes the decision
as a "ham-handed, categorical approach" that is "deaf to the
constitutional imperative to permit unfettered debate, even among high
school students, about the wisdom of the war on drugs or of legalizing
marijuana for medicinal use."

Where Alito sees a bright line, Stevens sees a slippery slope. What
about speech that mentions alcohol -- also a drug illegal for minors?

"While I find it hard to believe that the court would support
punishing Frederick for flying a 'Wine Sips 4 Jesus' banner -- which
could quite reasonably be construed either as a protected religious
message or as a pro-alcohol message -- the breathtaking sweep of its
opinion suggests it would," Stevens writes.

Narrow or sweeping? We won't know until we see how school districts
apply the decision and how courts interpret it. But don't be surprised
when many school officials and judges use it to find new grounds for
censoring students. If an absurd reference to drug paraphernalia can
be suppressed, what's the stopping point?

Given how messy the fallout from this decision is likely to be, school
officials should focus less on how to use it and more on how to avoid
future conflicts.

After all, Frederick didn't make that banner out of whole cloth. His
protest came after a series of run-ins with the administration over
what he believed was unfair treatment.

For example, he claims that previously he got into trouble for
refusing to stand during the Pledge of Allegiance, and that's his right.

From the conflicting accounts, I don't know what actually happened at
Frederick's high school. But I do know that far too many schools
mistakenly assume that the best way to maintain discipline is to
control student expression. Draconian speech codes and censored school
publications may create the appearance of order, but they breed
alienation, distrust and rebellion.

It may seem counterintuitive, but students are far more likely to
behave well in schools that take free speech seriously. Schools where
students are given meaningful opportunities to express themselves --
and to participate in decision-making about school rules -- are
schools where high school rebels like Joe Frederick have little or
nothing to rebel against.

Charles Haynes is a senior scholar for the Freedom Forum First
Amendment Center, 1101 Wilson Blvd., Arlington, VA