ANOTHER LOOK AT 'BONG HITS' CASE

Was Morse v. Frederick actually a victory for student
speech?

Many questions have been asked about what the Supreme Court's ruling
in Morse v. Frederick, the "bong hits" case, really means.

Like Frederick's banner, it can mean a great many things or nothing at
all. The inescapable conclusion, however, is that the Juneau School
District utterly failed in its goal of expanding school power over
student speech.

First, the narrow ruling: A 5-4 majority ruled the school could punish
someone for the display of the banner on a public street during a
public event, even though the school district admitted there was no
disruption of the educational process. Four of the justices reached
this conclusion by creating a new category of speech that lacks any
First Amendment protection, namely, student speech that promotes use
of an illegal drug.

At the same time, a clear majority of the court turned back the school
district's attempt to eliminate the most important legal rule
protecting student speech, the 1969 Tinker v. Des Moines case in which
the court held that student speech cannot be censored without
demonstrating a substantial disruption of the educational process.
Even the district's own attorney, Kenneth Starr, concluded that the
court "ringingly reaffirmed" Tinker. And two of the majority justices
noted that if there were any conceivable interpretation of the speech
that makes it a political or social comment, it is fully protected by
the First Amendment, which means that even in school it cannot be
punished as long as it does not substantially disrupt the educational
process.

So any student who wants to make a point, as Joseph Frederick did,
through humor and parody, would be well advised not to be subtle. If
the message is a political or social comment, make it so clear that
even a Supreme Court justice cannot miss it, and the school district
will be required to recognize it as protected.

As for the district, the situation remains almost entirely the same as
before the decision: Any nonobscene and nondisruptive student speech,
banner or T-shirt is protected, and if it has an arguable political or
social message - to which I would add any religious or artistic intent
- - it cannot be punished, even if it mentions an illegal substance. If
some future principal were to overreact to an ambiguous sign by
punishing the student, as did Morse, the principal would be in court,
defending his or her conduct under the Tinker standard.

There is a darker side to the ruling. When the four justices who
carved out an exception to the First Amendment for student speech
advocating illegal drug use, it for the first time made an entire
subject taboo.

Past restrictions on speech have been those regulating the character
of the speech - for example, censoring obscene materials and speech
that disrupts because of the place or the manner in which it occurs.

Now we have a new category: Speech that can be punished simply because
the Supreme Court finds the topic itself too sensitive to allow. We
should ask, what topics might a future Supreme Court find too
sensitive to allow in schools or on the streets? National security?
Criticism of the president? Criticism of minority religions? The
ruling in Morse v. Frederick cracks open the door to a pernicious and
dangerous doctrine, brought to us, unfortunately, by the Juneau School
Board's insistence on trying to cut back student rights.

One other unfortunate result occurred in this case. The majority ruled
against Joseph because, it said, he did not have a serious political
purpose behind his banner. To reach this result, the court had to
ignore the clear testimony in the record that showed Frederick did
have a serious intent - to protest the state of free speech in the
school system and the community at large. Even the trial court found
he had such a purpose. But to make its political point, the majority
had to ignore this evidence.

What can Frederick do at this point? The Supreme Court resolved only
the issue of whether the Constitution protects his free speech. That
leaves the issue of whether the Alaska Constitution has greater free
speech protections. In the coming weeks, Frederick will decide whether
to keep litigating over the Alaska legal question. In the meantime, he
can take some comfort from knowing that, as confusing as the Supreme
Court decision was, it resoundingly rejected the school district's
attempts to restrict student free speech rights.