VOTE AGAINST BANNER SHOWS DIVIDE ON SPEECH IN SCHOOLS

WASHINGTON -- The Alaska high school student who unfurled a 14-foot
banner with the odd message "Bong Hits 4 Jesus" insisted that it was
a banner about nothing, a prank designed to get him and his friends
on television as the Olympic torch parade went through Juneau en
route to the 2002 Winter Games in Salt Lake City.

The school's principal insisted, to the contrary, that the banner
advocated, or at least celebrated, illegal drug use, and that the
student, Joseph Frederick, should be punished for displaying it. She
suspended him for 10 days.

On Monday, by a narrow margin, the Supreme Court backed the principal
in a decision that showed the court deeply split over what weight to
give to free speech in public schools.

Six justices voted to overturn a federal appeals court's ruling that
left the principal, Deborah Morse, liable for damages for violating
Mr. Frederick's First Amendment rights.

Chief Justice John G. Roberts Jr. spoke, at least nominally, for five
of the six. He said for the court that Ms. Morse's reaction to the
banner, which was displayed off school property but at a
school-sponsored event, was a reasonable one that did not violate the
Constitution.

While the banner might have been nothing but "gibberish," the chief
justice said, it was reasonable for the principal, who "had to decide
to act -- or not act -- on the spot," to decide both that it promoted
illegal drug use and that "failing to act would send a powerful
message to the students in her charge, including Frederick, about how
serious the school was about the dangers of illegal drug use."

He added, "The First Amendment does not require schools to tolerate
at school events student expression that contributes to those dangers."

Four other justices, Antonin Scalia, Anthony Kennedy, Clarence Thomas
and Samuel A. Alito Jr., signed the chief justice's opinion, although
Justice Thomas took a much different approach. He said that Mr.
Frederick had no First Amendment rights to violate.

"In light of the history of American public education," Justice
Thomas said, "it cannot seriously be suggested that the First
Amendment 'freedom of speech' encompasses a student's right to speak
in public schools." The court's precedents had become incoherent, he
said, adding, "I am afraid that our jurisprudence now says that
students have a right to speak in school except when they don't."

The sixth justice, Stephen G. Breyer, did not sign the chief
justice's opinion, but wrote separately to say that the First
Amendment issue was sufficiently cloudy that the court should have
avoided deciding it. Instead, he said, the court should have ruled in
the principal's favor on the alternative ground that she was entitled
to immunity from the student's lawsuit.

Under the court's doctrine of "qualified immunity," government
officials may not be sued for damages unless they have violated
"clearly established" rights "of which a reasonable person would have known."

There were additional shades of opinion within the chief justice's
majority. Justice Alito, joined by Justice Kennedy, wrote separately
to emphasize what they said was the narrowness of the court's
holding. They said the decision should be understood as limited to
speech advocating drug use, and noted that the court had not endorsed
the much broader argument, put forward by the Bush administration,
that school officials could censor speech that interfered with a
school's "educational mission."

The breadth of that argument had alarmed religious conservatives, on
the ground that school officials would get a license to enforce
political correctness. Justice Alito, who had expressed a similar
concern as an appeals court judge, said that the "educational
mission" argument "strikes at the very heart of the First Amendment"
by allowing school officials to "suppress speech on political and
social issues based on disagreement with the viewpoint expressed."

Writing for the four dissenters, Justice John Paul Stevens said that
even limited to drugs, the majority opinion distorted the First
Amendment by "inventing out of whole cloth a special First Amendment
rule permitting the censorship of any student speech that mentions
drugs" in a way that someone might perceive as containing a "latent
pro-drug message."

Justice Stevens said that "carving out pro-drug speech for uniquely
harsh treatment finds no support in our case law and is inimical to
the values protected by the First Amendment."

Noting that alcohol also posed a danger to teenagers, Justice Stevens
wondered whether "the court would support punishing Frederick for
flying a 'Wine Sips 4 Jesus' banner," which he said might be seen as
pro-religion as well as pro-alcohol.

The dissenters, who also included Justices David H. Souter, Ruth
Bader Ginsburg and Breyer, agreed with the majority that the
principal should not be held personally liable for monetary damages.
The case was Morse v. Frederick, No. 06-278.