FREE SPEECH UP IN SMOKE?

The conservative Supreme Court majority may be using wildly mixed
reasoning on First Amendment issues, but the inconsistencies don't
ease fears about this court's capacity for a coordinated, all-out
attack on free speech.

In the same week that the court expanded First Amendment protections
for unregulated campaign advertising by special-interest groups, the
justices ruled 5-4 that an Alaska high school was right to suspend a
student for displaying a silly and innocuous banner during an
off-campus parade.

"Bong Hits 4 Jesus," read the sign, part of student Joseph Fredericks'
attempt to get on TV. It has brought him far more attention than he
could have imagined.

The majority held that because previous rulings seriously limit the
free speech rights of students, it was fine for the school to suspend
the boy. Five justices concluded that the nearly nonsensical sign
advocated illegal drug use, which the schools are expected to combat.

Justice Clarence Thomas took an extreme line. He wrote that students
don't really have any First Amendment rights. And even if Fredericks
was simply being silly, Thomas felt that providing constitutional
protection for "such impertinence ... would be farcical."

Fortunately for those who don't consider sassiness a sin, others in
the majority weren't as stiff or as fully convinced of their
righteousness. Justice Samuel Alito led the not-so-sure camp, and his
attempt to qualify his position may be giving false hope to free
speech advocates. It is an extremely thin reed.

Alito said he voted with Thomas only because the sign was about
illegal drug use, which presents such a grave threat to students. He
said that if the banner had been about something else, he wouldn't
have been able to ignore the First Amendment.

Optimists say Alito's position makes the ruling extremely narrow --
applicable only in cases of students promoting illegal drug use. That
thinking may not hold up, however, considering the ambiguity of the
young man's banner and the subjectivity of the court opinion.

"Bong Hits 4 Jesus" hardly translates directly to "Smoke Marijuana."
It amounts to a whimsical bumper sticker that contributed little to
Alaska's drug problems. Even so, Alito concluded that "Bong Hits 4
Jesus" is such a dangerous sentiment that it exempts itself from
constitutional protection.

If the line remains that fuzzy, school administrators will be hard
pressed to permit any writings or utterances that mention drugs
without utter condemnation. Fredericks unfurled his banner across the
street from school, after classes were out for the day. If location,
intent and effect aren't elements of the equation, what happens now
when a teacher at the mall spots a student wearing a T-shirt decorated
with a marijuana leaf?

Thomas and Alito were correct when they wrote that the schools need to
help fight drug abuse. But Alito's view that ambiguous statements must
be seen in the worst light, coupled with the brittleness of Thomas'
position, add up to a scary attack on the First Amendment.