HIGH COURT REJECTS 'BONG HITS' BANNER AS FREE SPEECH

The U.S. Supreme Court issued a split 5-4 decision Monday, June 25
making it easier for school officials to censor the speech of
students who express messages authorities fear that others might
perceive as promoting the violation of a law or school policy.
Disagreeing with the opinion, Justice Stephen Breyer said the
decision could promote "viewpoint-based restrictions" to the point of
curbing mere conversations about the need for change in certain laws.

But Jon Davidson, legal director for Lambda Legal Defense and
Education Fund, said the decision is narrow enough to pose those
restrictions only in regards to speech concerning illegal drug use
and he does not believe there is any green light for authorities who
wish to restrict pro-gay speech.

His reaction might have been different, of course, had this week's
decision in Morse v. Frederick come before the 2003 Lawrence v. Texas
decision striking down sodomy laws. In Morse , Chief Justice John
Roberts wrote that "we discern no meaningful distinction between
celebrating illegal drug use in the midst of fellow students and
outright advocacy or promotion."

Breyer's opinion said the case should have been dealt with on narrow
technical grounds rather than on its First Amendment claim. He
strongly opposed the majority's claim that schools may censor speech
that can "reasonably be regarded" by others as encouraging illegal activity.

While the majority opinion "is theoretically limited to speech
promoting the use of illegal drugs," said Breyer, "it could in fact
authorize further viewpoint-based restrictions." He said the court's
ruling could extend to a mere "conversation during the lunch period
where one student suggests that glaucoma sufferers should smoke
marijuana to relieve the pain" because "speech advocating change in
drug laws might also be perceived of as promoting the disregard of
existing drug laws."

But Davidson said he thinks that a concurring opinion from Justices
Samuel Alito and Anthony Kennedy -- who joined Roberts and Justices
Antonin Scalia and Clarence Thomas in the 5-4 majority -- essentially
prevents the use of the decision to the expression of other
activities that might be illegal, such as the medicinal use of
marijuana, bans on same-sex marriage, or, in Florida, the adoption of
children by gay couples.

Alito and Kennedy's concurrence explicitly states that they join the
majority decision "on the understanding that ... it provides no
support for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issue, including
speech on issues such as .. legalizing marijuana for medicinal use."

Morse v. Frederick involved an incident in Alaska in which a high
school principal, Deborah Morse, snatched a banner that read "Bong
Hits 4 Jesus" out of the hands of a student, Joseph Frederick, during
an Olympic torch parade in 2002 that students were watching during
school hours.

The majority made no attempt to discern whether Frederick was, in
fact, participating in the school-sponsored observation; he had not
yet gone to school that day and was observing the parade from a
position across the street from the school and other students.

In previous decisions from the Supreme Court, justices have ruled
that students, like other citizens, have a First Amendment freedom of
expression but that schools can curb that if the expression disrupts
the "work and discipline of the school," constitutes a threat, or is
"offensively lewd and indecent."

The majority declared that the principal reasonably interpreted the
banner to encourage other students to use illegal drugs and that,
while Frederick was not on school property, it was reasonable to
conclude that he was in attendance at a school-sponsored event.

"Student speech celebrating illegal drug use at a school event ...
poses a particular challenge for school officials working to protect
those entrusted to their care from the dangers of drug abuse," wrote
Roberts. The majority concluded that "schools may take steps to
safeguard those entrusted to their care from speech that can
reasonably be regarded as encouraging illegal drug use."

Lambda Legal submitted a friend-of-the-court brief urging the high
court to reject the principal's argument in this case because the
banner was neither interfering with the rights of other students nor
posing a threat. But Lambda's main concern with the case was that the
court might "tie a school's hands to address conduct that causes
other students serious harms," such as anti-gay harassment. Davidson
said Lambda is "relieved that today's decision does not open the door
for schools to limit the speech supporting the rights of lesbian,
gay, bisexual, and transgender students."

"Students still have rights to talk about subjects such as
sexuality," said Davidson, and he noted that the majority rejected a
recommendation from the Bush administration to give school
authorities the leeway to censor any speech that conflicts with a
school's mission.

But the dissent, led by Justice John Paul Stevens, said the principle
the majority opinion articulates "has no stopping point."

"In the national debate about a serious issue," wrote Stevens, "it is
the expression of the minority's viewpoint that most demands the
protection of the First Amendment."

Joined by Justices David Souter and Ruth Bader Ginsburg, Stevens also
pointed out that Roberts was being selective in his reasoning
because, in another opinion issued Monday, Roberts proclaimed that
when the "First Amendment is implicated, the tie goes to the speaker"
and that "when it comes to defining what speech qualifies as the
functional equivalent of express advocacy ... we give the benefit of
the doubt to speech, not censorship."

In that latter case, Roberts handed a victory to Wisconsin
Right-to-Life, which had sought to air television ads to put pressure
on Wisconsin's two Democratic U.S. senators not to filibuster certain
judicial nominees in 2004. (This was prior to the nomination of
Roberts in 2005 and Justice Samuel Alito in 2006.) In Federal
Election Commission v. Wisconsin Right-to-Life, the same 5-4 majority
that restricted student speech in Morse struck down a provision of
the 2002 federal Bipartisan Campaign Reform Act that subjects to
federal campaign restrictions any broadcast within 30 days of an
election of an ad that mentions a specific federal candidate and is
targeted to a specific voting audience. Its purpose was to curtail
the massive expenditure of money to influence elections by attacking
a candidate through highlighting of his or her position on one issue.