ANOTHER FOOTNOTE IN HISTORY

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 how nine
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 that students do not "shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate."

Thirty-three years later, at a school-sanctioned event, students were
watching the Olympic torch pass through Juneau en route to the 2002
Winter Olympics in Utah. Frederick and some friends, standing across
from their school, unfurled a banner reading "Bong Hits 4 Jesus." The
principal read that as endorsement of, even advocacy of 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 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.

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.

Alito, joined by Kennedy, emphasized that in ruling against Frederick
the court was condoning only restriction of speech advocating illegal
drug use. 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 banner 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 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 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.