COURT CREATES 'DRUG EXCEPTION' TO FREE SPEECH FOR TEENS

EDMOND -- There's a Ferris Bueller in every generation. He's the
student who gains great pleasure in aggravating the school principal
with juvenile antics and distractions. His sole goal in life seems to
be to get attention in a new and creative way, each stunt better than the last.

In 2002, Joseph Frederick was an 18-year-old senior in Juneau,
Alaska, when everyone in his school went outside to watch the Winter
Olympics torch relay pass through town. Knowing there would be media
coverage, he and his friends unveiled a 14-foot paper sign that read
"Bong Hits 4 Jesus" along the sidewalk, hoping to get on television.
The enraged principal confiscated the sign and suspended Frederick
for 10 days. On appeal, the superintendent reduced the sentence to
eight days served.

A bong, for those who are unaware, is a water pipe often used in
smoking marijuana. A beer bong is a funnel and tube used to drink
lots of beer quickly. Neither has much to do with Jesus Christ, but
the absurdity of the message paled in comparison to the fact that the
dispute reached the halls of the U.S. Supreme Court.

The principal, represented by none other than Kenneth Starr, argued
she had a right to quell anything she felt was contrary to the
school's drug abuse policy. The student's attorney said the message
had nothing to do with promoting drug use, but solely was intended to
get the attention of the television cameras across the street.

In a 5-4 decision, the court on June 25 ruled in favor of the school.

The general rule in free speech cases has been the government can
regulate expression based upon the manner, place and time of the free
speech, but not on the content. In a landmark case in 1969, the court
held that students do not "shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate."

It recognized the right of students to wear black armbands in 1965 as
a silent, non-disruptive protest against the Vietnam War. In other
cases during the years, the court has held that infringement based on
the content of the speech is presumed to be unconstitutional. The
court also has recognized a difference between merely advocating
certain conduct and the "incitement to imminent lawless action." It
has said there must be "a specific and significant fear of
disruption, not just some remote apprehension of a disturbance." The
beliefs of third parties about the content of the message, regardless
of whether that belief is reasonable, has never before dictated
whether speech can be prohibited.

Frederick didn't incite any imminent lawless action, or disrupt the
Olympic torch relay or the class outing. His banner was a farce. In
his dissent, the court's senior justice, John Paul Stevens, said the
majority reached "the remarkable conclusion that the school may
suppress student speech that was never meant to persuade anyone to do
anything." He said the "nonsense" banner didn't violate any rule or
expressly advocate illegal or harmful conduct. To discipline a
student "for his attempt to make an ambiguous statement to a
television audience simply because it contained an oblique reference
to drugs," he said, offends the First Amendment.

Perhaps most remarkable is the fact that, on the same day, the court
handed down a ruling in which it declared the McCain-Feingold
restriction on campaign spending to be too restrictive. Chief Justice
Roberts wrote in that opinion, "Where the First Amendment is
implicated, the tie goes to the speaker, not the censor." Yet Roberts
also wrote the majority opinion in Frederick, in which he gave no
respect to the intent of the speaker.

The great danger in Frederick is it creates out of thin air a "drug
exception" to the First Amendment unsupported in the Constitution.
That may be just the first crack in the dam. What's next? An Iraq
exception? A Homeland Security exception, or a George Bush exception?
The only speech in need of protection is speech that another person
may find offensive.

Woodrow Wilson once said the greatest freedom of speech was the
greatest safety, because "if a man is a fool the best thing to do is
to encourage him to advertise the fact by speaking."

Where is Frederick today, five years later? Incredibly, he's in
China, teaching English. Unfortunately, he may have a new lesson in
the First Amendment to pass along to his Chinese students as well.

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Walter Jenny Jr., an Edmond resident, is secretary of the Oklahoma
Democratic Party and chairman of the Edmond Democrats
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