LITIGATION INEVITABLY FOLLOWS AN EXTENSION OF RIGHTS

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 endorsement of, even advocacy of,
an illegal act (marijuana use) in violation of the school's stated
policy and educational mission.

The principal 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.

Though accepting that the banner was at a school event and endorsed
drug use, 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."

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 Supreme Court has seen enough to know
that one has never 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."

Somewhere, a teenager with an abnormal interest in the court and a
normal zest for mischief might be 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.