U.S. SUPREME COURT

'Bong' Case Limits Student Speech

The U.S. Supreme Court tightened limits on student speech Monday,
allowing schools to punish youths for statements that might promote
drug use -- a ruling that gives new prominence to laws in California
and a handful of other states that provide protections for expression
on campus.

The 5-3 decision came on a day when the court's conservative majority
flexed its muscles with rulings that favored corporate and union
political donors, developers and the Bush administration's efforts to
steer federal money for social services to religious groups. The
final rulings of the 2006-2007 term, including one on whether school
districts can consider students' race in integration plans, are
scheduled to be released Thursday.

The student speech case involved an Alaska high school senior who
raised a banner reading, "Bong Hits 4 Jesus," at a school-sanctioned
event outside campus. The school principal seized the banner and
suspended the student for 10 days.

The court said that although the message was "cryptic," the principal
had reasonably interpreted it as promoting the use of bongs --
marijuana water pipes -- and that such a statement by a student was
not covered by the Constitution's free speech guarantee.

"Schools may take steps to safeguard those entrusted to their care
from speech that can reasonably be regarded as encouraging illegal
drug use," Chief Justice John Roberts said in the majority opinion.

He said the court was not retreating from free speech principles it
established in a 1969 case of students who wore black armbands in a
silent protest against the Vietnam War. In that ruling, the justices
said schools must allow free expression unless it disrupts education.

The court has narrowed that principle in subsequent cases, ruling in
1986 that schools could prohibit sexually suggestive speech and in
1988 that they could censor student newspapers.

Dissenters from Monday's ruling said the latest case was a further
erosion of students' free speech rights.

"The court's ham-handed, categorical approach is deaf to the
constitutional imperative to permit unfettered debate, even among
high school students, about the wisdom of the war on drugs," Justice
John Paul Stevens wrote.

While arguing that the court shouldn't have accepted the principal's
"strained reading" of the bong banner, Stevens said the ruling would
also allow school administrators to punish a student for speech that
directly challenged drug laws. That, he said, would be contrary to
the spirit of the 1969 decision.

The ruling is likely to have little effect in California, one of
about a half-dozen states with laws that specifically protect student
expression. A 1983 California statute entitles public school students
to freedom of speech and of the press unless what they say is obscene
or libelous, or unless it creates a "clear and present danger" of
lawbreaking or disorder on campus.

A state appeals court in San Francisco relied on that law last month
in ruling against officials of Novato High School who confiscated a
student newspaper in 2001 because of an editorial saying any Latino
who couldn't speak English was probably an illegal immigrant.

"The whole purpose (of the state law) is to provide greater
protection than the First Amendment in the public schools," said
Peter Scheer, executive director of the California First Amendment
Coalition, a media advocacy organization. "Students, particularly in
the higher grades, ought to enjoy essentially the same freedom of
speech that their parents enjoy."

Michael Smith, an attorney in Fresno who represented the National
School Boards Association in the Supreme Court case, called Monday's
ruling "a victory for schools across the nation" but agreed that in
California, "it is entirely possible that the student's speech would
be protected."

The Alaska student, Joseph Frederick, unfurled a 14-foot "Bong Hits 4
Jesus" banner in January 2002 while a torch relay for the Winter
Olympics was passing by Juneau-Douglas High School and students were
being let out of class to watch it.

The principal, Deborah Morse, crossed the street and demanded that
Frederick and his friends take the banner down. When Frederick
refused, Morse grabbed the sign and crumpled it.

Frederick said "Bong Hits 4 Jesus" was a nonsense message and that
his only goal had been to get on television. But Morse suspended him
for 10 days for promoting drug use contrary to school policy.

Frederick, now 24, sought damages and an order removing the
suspension from his record. His lawyer, Douglas Mertz, said he still
has a case under Alaska law.

Legal commentators said Monday's ruling appeared to be narrowly
written but reflected the court's gradual narrowing of free speech in
schools since the Vietnam War armband case.

Although the ruling is limited to drug-related speech, it shows that
the court is no longer "putting a strong thumb on the First Amendment
scale (in favor of) students," said Jesse Choper, a UC Berkeley law professor.

USC law Professor David Cruz, an American Civil Liberties Union board
member, said the court was allowing a student to be punished for a
statement that "could be seen as celebrating" marijuana use but not
necessarily advocating it.

At the same time, he noted, two members of the majority, Justices
Samuel Alito and Anthony Kennedy, said in a separate opinion that
they would go along with punishing advocacy of illegal drug use but
would oppose discipline for a student's political commentary on drugs
or other subjects.

Another justice in the majority, Clarence Thomas, wrote that the
court should overrule its 1969 decision, deny free speech protections
for students and return to the days when "teachers commanded and
students obeyed."

Justice Antonin Scalia provided the fifth vote for the majority.

Stevens' dissent was joined by Justices David Souter and Ruth Bader Ginsburg.

The ninth justice, Stephen Breyer, said the court should have
sidestepped the constitutional issue and ruled only that the
principal had violated no clearly established rights and could not be
sued for damages.

The case is Morse vs. Frederick, 06-278.