IS THE SUPREME COURT SPLITTING HAIRS? NOT REALLY

In Constitutional Litigation, Distinctions Must Be Drawn

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 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 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." 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."
Not a threat 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.

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. Although
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."

'Farcical' In concurring opinions, Thomas and Alito took strikingly
different positions. Thomas said that nothing in 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." 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 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 "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 must be drawn once a subject becomes a matter of
constitutional litigation.