TESTING THE LIMITS OF FREE SPEECH

Monday, the U.S. Supreme Court will hear oral arguments in Morse v.
Frederick, which asks if Juneau schools wrongly quashed a student's
free-speech rights. Here is background on the case and its issues.

What Started the Case?

On Jan. 24, 2002, 18-year-old student Joseph Frederick unfurled a
banner across the street from Juneau-Douglas High School proclaiming
"Bong Hits 4 Jesus." School had been let out to watch the Olympic
torch parade pass by. Principal Deborah Morse took the banner and
suspended him. He appealed, then took his case to federal court,
saying his First Amendment rights had been violated.

What Did His Banner Mean?

A bong is a water pipe for smoking marijuana. As for the rest of it
- -- Frederick said he was wanted a nonsensical, funny, provocative
phrase to get on TV and make a point about free speech. School
officials said the banner promoted drug use, violating school policy.

"I wasn't trying to spread any idea. I was just trying to assert my right."

. Joseph Frederick

"Debate in a social studies class would be fine. That's protected and
encouraged speech. But promotion of drug use outside class is not."

. Current Juneau School Superintendent Peggy Cowan

What Happened in Court?

Both sides agreed on most basic facts and skipped a trial. U.S.
District Court Judge John Sedwick backed the school district on the
key constitutional questions in May 2003. Frederick appealed, and the
9th U.S. Circuit Court of Appeals overruled Sedwick last March. The
school board appealed. The U.S. Supreme Court takes very few such
cases but agreed to hear this one.

Is Student Free Speech Limited?

Yes. The Supreme Court has said students do not "shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate." But it has drawn limits in three landmark cases:

Tinker, 1969: Conduct cannot "disrupt" school or infringe on other
students' rights. In this case, the court ruled that black armbands
worn to protest the Vietnam War were not disruptive.

Fraser, 1986: Language cannot be "plainly offensive." A student
speech filled with "sexual innuendo" at an assembly was not allowed

Kuhlmeier, 1988: School-sponsored functions such as a school
newspaper can be restricted. A school paper could not publish stories
on divorce and pregnancy over the principal's objection.

Does It Matter That This Case Took Place in Alaska?

A little, the 9th Circuit said. Alaska has had an ongoing legal and
political debate over criminalization of marijuana, the court noted.
The court wondered if the school's laudable anti-drug policy would
mean administrators could censor a student handing out the Alaska
Supreme Court decision allowing private possession of marijuana.

What Are the School District's Arguments?

Frederick's "antisocial publicity stunt" was meant to disrupt a
school activity (Tinker) and his message was "plainly offensive"
(Fraser) and inconsistent with the school's mission to promote a
healthy, drug-free life.

"The First Amendment does not require hamstringing school officials
in the fight against illegal drug use by teens."

. Amicus brief by DARE America, an anti-drug group

What Are Frederick's Arguments?

The banner incident was a political statement about free speech, not
a promotion of drug use, and therefore protected by the Constitution.
No disruption of school was ever shown. The case is really about the
school's ability to censor speech that officials interpret as
contradicting their own preferred message.

"(Officials) crossed the line between legitimately conveying their
own message promoting a healthy drug-free lifestyle and unlawfully
suppressing what they perceived to be Frederick's contrary opinion."

. Main Frederick brief, Douglas Mertz and ACLU

Who Are the Lawyers?

For Frederick, Douglas Mertz of Juneau, a former assistant attorney
general, with support from the American Civil Liberties Union.

For the Juneau School Board, Kenneth Starr, former U.S. solicitor
general and independent prosecutor whose Monica Lewinsky
investigation led to President Clinton's impeachment trial.

Where Can I Read the Legal Briefs Filed in the Case?

For briefs that argue Joseph Frederick and the Juneau School
District's sides, or to read last year's 9th Circuit decision, go to adn.com.

Can I Watch or Listen to the Oral Argument?

Only if you're in Washington, D.C. But a full transcript should be
posted at about 10 a.m. ADT Monday on the court's Web site at
www.supremecourtus.gov/oral_arguments/argument_transcripts.html .

When Will the Court Decide?

Before the end of June.

How Much Does This Cost?

Douglas Mertz and Kenneth Starr are working for free. If Frederick
wins, Mertz will be due attorney's fees from the school district.
Insurance will cover most of those and other costs, said Juneau
Superintendent Peggy Cowan. She said the district would pay $25,000
to $50,000, with some of that coming from the state school board association.

What 'Friends of the Court' Have Joined the Case?

For Frederick: A dozen groups ranging from the Christian Legal
Society to the Lambda Legal Defense and Education Fund (a gay-rights
group), plus some conservative constitutional-rights groups. Many
don't agree with Frederick's choice of words but fear schools will
censor other kinds of speech or weave a "suffocating blanket of
political correctness."

For the school: The National School Boards Association, anti-drug
groups and the U.S. solicitor general. The Bush administration
position called the banner "advocacy of unlawful conduct."

How Can Morse Be Liable? Wasn't She Just Doing Her Job?

This is an important second point before the court. The 9th Circuit
said Morse had committed such an obvious violation of Frederick's
free-speech rights that she forfeited the "qualified immunity"
normally given to officials enforcing school policy. Mertz argues the
whole case arose because of "Morse's colossal misjudgment."

But Morse's supporters say school officials across the nation
couldn't do their jobs with such a ruling over their heads. If her
"proper" course of action was so clear that morning, they say, why
was she later backed up by the local superintendent, the school board
and a federal district judge?

Was the Banner on TV?

Not that day, apparently. But Frederick got publicity beyond his
dreams. By the time Kenneth Starr got involved in the case last
summer, the number of Internet hits on Google for the phrase "Bong
Hits 4 Jesus" was up to 14,000. This month the number is more than 54,000.