'BONG HITS' CASE GOES BACK TO COURT

Frederick's Attorney Says Client Has Right to Sue for
Damages

Despite a U.S. Supreme Court ruling earlier this year on Joseph
Frederick's free-speech case, the legal debate is not over.

The case of the former Juneau-Douglas High School student was returned
to the 9th U.S. Circuit Court of Appeals, which is an automatic part
of the legal process.

"There is still a dispute," said Frederick's attorney, Doug
Mertz.

The 9th Circuit Court will either dismiss the case outright or send it
to the U.S. District Court in Alaska for Frederick to argue for his
banner, "Bong Hits 4 Jesus," under state free speech laws and civil
liability issues.

At the heart of Mertz's argument is Frederick's motive when he and
others lifted the 14-foot banner - and whether Frederick retains the
right to sue for damages. Mertz said part of Frederick's argument
attempts to protect future JDHS students from a district policy
enforced by then-Principal Deborah Morse.

The attorney said that five years later, the Juneau School District
"continues to deny that students have free speech on serious matters."

Following the case's return from Washington in July, Juneau School
District attorney David Crosby filed a motion to throw the case out on
grounds that there is no longer a viable state issue to argue. Mertz
filed his response last week.

In Crosby's argument there is no speech debate, only the liability
issue. He said that Frederick failed to appeal an earlier 9th Circuit
Court decision that freed the district and its people from
prosecution.

"It's too late in the day to talk about it," Crosby
said.

Crosby said the claim of damages resulting from Morse's action to
suspend Frederick after taking away his banner is moot.

"We still have the policy and intend to enforce it," Crosby
said.

State law protects the district and its individual personnel from
liability when enforcing district policy, Crosby said. He bases his
argument on a belief that school boards are not a governing body and
thus not liable for their actions or policies.

Mertz argues a broader concept of liability. He said Crosby's argument
is akin to saying that the Juneau Assembly doesn't exist.

"When would the district ever be liable?" Mertz asked.

Without Justice Clarence Thomas' stance, which said that students have
no civil rights, there was no Supreme Court majority in favor of
restricting student speech, and if the 9th Circuit Court allows the
case, Mertz intends to continue the argument about a civil rights violation.

During a trial, Mertz would show that Frederick's message was not
pro-drug, but in fact a protest favoring student speech. State laws
are often more protective than federal, he said.

What keeps the civil rights argument alive is that the U.S. District
Court in Alaska said Frederick's speech was indeed political and
therefore protected. The court found that Frederick intended the
banner to communicate he had free speech rights, Mertz said.

"It was intended to protest the high school administration disregard
of student rights," Mertz said.

Sticking to the liability issue, Crosby wrote in his motion that
Frederick waived any claim to damages under state law by failing to
appeal the District Court ruling in a timely manner.

Crosby said that Frederick was asked repeatedly to explain what his
damages were and did not.

"I don't think he's got damages," Crosby said.

Mertz's brief claims that the district railroaded Frederick after the
incident.

"Frederick suffered a campaign of retaliation and harassment by School
District officials, including false reports to police, a false arrest
instigated by the high school and slander about him directed toward
his fellow students," Mertz said.

Crosby said the list of accusations were never part of the case, but
if they were, the School District would "categorically deny them." He
said Frederick should have brought a harassment charge long ago before
the statute of limitations ran out. That expired in 2004.

According to Superintendent Peggy Cowan, details from the bong hits
case and disciplinary actions were expunged from Frederick's school
records when Crosby filed the recent motion to dismiss.

If Mertz can show there was a violation of Frederick's civil rights
under state law, his argument goes beyond a direct financial loss.
Mertz contends there is a value to people whose civil rights are violated.

"Every week of the year, juries decide damages without bank accounts,"
Mertz said. "A jury can put whatever amount they want on it."