CONSTITUTIONAL RIGHTS CAROUSEL

WASHINGTON - 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 week, 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 to school black armbands 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 that students do not "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 that 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, standing on a
public street across from their school, unfurled a banner reading
"Bong Hits 4 Jesus." The school's principal read that as 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 - the court most often
reversed by today's Supreme Court - sided with him
unanimously.

The panel held that Frederick's rights had been violated because there
was no finding that his speech threatened a substantial disruption of
the school. Last week, 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, did not 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." And 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 that nothing in the history of public education
or the original understanding of the First Amendment suggests that
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 that the ruling "provides no support for any restriction
of speech that can plausibly be interpreted as commenting on any
political or social issue."

John Paul 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 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."

Somewhere, a teenager with an abnormal interest in the court is
thinking: Cool idea, Justice Stevens - I'll create a banner to test
whether banning "Wine Sips 4 Jesus" would infringe my religious
freedom. Endless distinctions can - actually, must - be drawn once a
subject becomes a matter of constitutional litigation.