HERALD POLL: STUDENTS AND FREE SPEECH

The Supreme Court recently considered a 2002 Alaska case involving the
question of limits on the free speech rights of public school
students. In a 5-4 vote it said that school principals could punish
students for making statements that could be "reasonably" construed as
advocating illegal drug use.

At the center of the case was a banner spread in public view at the
Olympic Torch Relay as runners headed for Salt Lake City. In big
letters the banner proclaimed "BONG HiTS 4 JESUS."

Students at Juneau-Douglas High School had been allowed to leave class
to watch as the Olympic flame passed before their school. Joseph
Frederick, then a senior, was late for school -- presumably making
ready his banner -- and joined other students across the street from
the school. Out came the sign, and up went the eyebrows of the school
principal.

The principal, Deborah Morse, ordered the banner taken down. Frederick
refused and Morse confiscated the sign and later suspended Frederick
for 10 days. Frederick said his suspension was initially for five
days, but Morse doubled it after he quoted Thomas Jefferson's warning
that "speech limited is speech lost."

Morse said she interpreted the sign as advocacy -- or at least
publicity -- for the smoking of marijuana, putting it in violation of
school policy. Frederick argued that the sign signified nothing at
all. It was merely "nonsense" designed to catch the eye of TV camera
crews covering the event, he said. Yet he held that confiscation and
suspension violated his constitutional rights to free expression.

Chief Justice John Roberts, writing for the court, declared that the
free-speech rights of students are not trampled when schools restrict
pro-drug messages.

"We hold that schools may take steps to safeguard those entrusted to
their care from speech that can reasonably be regarded as encouraging
illegal drug use," Roberts wrote.

While Roberts admitted that the banner's wording was "cryptic," he
concluded Morse reasonably thought the message was advocating drug
use, as "bong hits" is a slang term for using a water pipe to inhale
marijuana smoke.

"At least two interpretations of the words on the banner demonstrate
that the sign advocated the use of illegal drugs," Roberts wrote for
the majority. "First, the phrase could be interpreted as an
imperative: "[Take] bong hits . . ." -- a message equivalent, as Morse
explained in her declaration, to "smoke marijuana" or "use an illegal
drug." Alternatively, the phrase could be viewed as celebrating drug
use -- "bong hits [are a good thing]," or "[we take] bong hits" -- and
we discern no meaningful distinction between celebrating illegal drug
use in the midst of fellow students and outright advocacy or promotion."

"The best Frederick can come up with," he continued, "is that the
banner is 'meaningless and funny.' Gibberish is surely a possible
interpretation of the words on the banner, but it is not the only one,
and dismissing the banner as meaningless ignores its undeniable
reference to illegal drugs."

It's hard to argue against restricting blatant advocacy of illegal
drugs in a school setting. But does this decision restrict free speech
too much? History has shown us that once censors get an inch, they
quickly seize a mile.

Critics say this decision creates an opening for censors to shut down
student speech well beyond open advocacy of illegal drug use, just as
the court did nearly 20 years ago in Hazelwood v. Kuhlmeier. The court
in that case said that school principals could censor student
publications for educational purposes. Some like-minded principals
have stretched "educational purposes" to the breaking point to block
student news reports about air pollution from school bus garages and
criticism of the football team, turning many high school newspapers
into little more than feel-good public relations packets instead of
training grounds for future journalists.

The doomsayers see the prohibitions of drug advocacy potentially
twisted to shut off legitimate speech. As Justice Stephen Breyer
warned in his dissent on the First Amendment aspects of the case, the
majority opinion could be used to prohibit a student from making a
critical comment about an anti-drug film or to keep students from
discussing whether people with glaucoma should smoke marijuana for
pain relief. A student talking about how an American Indian church
uses peyote for religious purposes might risk punishment.

The potential for abuse increases when a bureaucrat, not the speaker,
determines the meaning of a message. Such twisted logic creates a
tyranny of the offended. The trouble in this case is that Frederick,
the student, never once claimed that he was engaging in political
speech or introducing a subject for responsible debate. He said only
that he wanted to attract TV cameras.

As a result, there were no facts in evidence that would have led five
justices to acknowledge a First Amendment safe harbor for the message
on the banner.

At the same time, it's the radical speech that needs protection the
most, not the safe speech with which few disagree. And that is true
for students as well, with certain exceptions. Advocacy of illegal
drug use is one of those.

Why not allow students to learn free speech by exercising it? They
can, except when they're advocating or promoting illegal acts. Will
kids make mistakes and say outrageous things? Of course. Should they
be tolerated most of the time for so doing? Certainly.

But that's not the point at issue in this case. The decision is
sufficiently narrow, it seems to us, that it limits only student
speech that can reasonably be said to constitute a danger to others.

Some people -- including four justices of the Supreme Court --
disagree. Breyer, the court's most mercurial member, even argued that
the decision could be made without even reaching the First Amendment.
He thought it could be decided on the basis of government immunity
statutes alone.

So the final 5-4 vote may not represent a significant ideological rift
between conservative and liberal justices, as has been proclaimed by
certain pundits.

We do hope that educators will resist the temptation to censor
students. Like other citizens, students should have broad latitude to
exercise their great American birthright.

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WHAT DO YOU THINK?

Should schools be allowed to restrict what students say about drugs?
Send your comments to dhpolls@heraldextra.com or call 344-2942. Please
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The Daily Herald will publish comments on July 15.