FACTS ARE PLAIN, BUT INTERPRETATIONS MORE COMPLICATED

In January 2002, in Juneau, Alaska, Joseph Frederick had the sort of
idea that makes a teenager seem like one of nature's mistakes.

Last month, after five years and the attention of 13 federal judges,
Frederick became a footnote in constitutional history.

His case illustrated how the multiplication and extension of rights
lead to the proliferation of litigation. It also illustrated something
agreeable in a disagreeably angry era - how nine intelligent,
conscientious justices can civilly come to strikingly different
conclusions about undisputed facts.

This story actually began in 1965, in Des Moines, Iowa, when three
teenagers wore black armbands to school to protest the Vietnam War.

Their school said the bands or the students must go. The students kept
the bands, were suspended, sued and won a 7-2 Supreme Court victory in
1969.

The court said students don't "shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate."

One of the dissenting justices was Hugo Black, a fierce proponent of
First Amendment rights who nevertheless warned the decision denied
schools "the power to control pupils."

Thirty-three years later, at a school-sanctioned and
faculty-supervised event during normal school hours, students were
watching the Olympic torch pass through Juneau en route to the 2002
Winter Olympics in Utah.

Frederick and some friends, on a public street across from their
school, unfurled a banner reading "Bong Hits 4 Jesus."

The principal read that as an endorsement of, even advocacy of, an
illegal act (marijuana use) in violation of the school's stated policy
and educational mission. She ordered Frederick and his friends to take
the banner down. Frederick refused and was suspended from school for
10 days.

He sued, claiming his First Amendment free-speech rights were
violated. A district court ruled against him, but a three-judge panel
of the 9th U.S. Circuit Court of Appeals sided with him
unanimously.

Although accepting that the banner was at a school event and endorsed
drug use, the judges held that Frederick's rights had been violated
because there was no finding that his speech threatened a substantial
disruption of the school. The Supreme Court disagreed, 5-4.

Chief Justice John Roberts, joined by Antonin Scalia, Anthony Kennedy,
Clarence Thomas and Samuel Alito, noted that in 1986 the court, in a
case arising from "lewd and indecent" student speech, didn't conduct a
"substantial disruption" analysis.

Instead, that court held that, "in light of the special
characteristics of the school environment," the rights of students
"are not automatically coextensive with the rights of adults in other
settings."

In another case, the court has recognized an "important - indeed,
perhaps compelling" public interest in deterring drug use by children.

In concurring opinions, Thomas and Alito took strikingly different
positions. Thomas said nothing in the history of public education or
the original understanding of the First Amendment suggests students
have any justifiable First Amendment rights.

To confer constitutional protection on Frederick's "impertinence"
would, Thomas said, be "farcical."

Alito, joined by Kennedy, stressed that in ruling against Frederick,
the court was condoning only restriction of speech advocating illegal
drug use, and the ruling "provides no support for any restriction of
speech that can plausibly be interpreted as commenting on any
political or social issue."

Alito seemed to share Thomas' view that Frederick's banner was less
advocacy than "impertinence.'

Stevens, dissenting and joined by David Souter and Ruth Bader
Ginsburg, argued, plausibly, that Frederick's "nonsense banner" with
its "oblique reference to drugs" hardly constituted "promoting" drug
use or advocacy with likely and "feared" consequences.

One wonders: How does Stevens square this admirable First Amendment
fastidiousness with his tolerance of McCain-Feingold's gross
restrictions on the sort of speech that amendment's authors most
valued - political advocacy?

Stevens, who in 32 years on the court has seen enough to know someone
never has seen everything, mischievously wondered whether the majority
justices would have allowed Frederick's punishment if his offense had
been a banner reading "Wine Sips 4 Jesus," which could be read as
advocating alcohol use but also as - communion wine? - "a protected
religious message."

Endless distinctions can - actually, must - be drawn once a subject
becomes a matter of constitutional litigation.