'BONG HITS' RULING SIDES WITH DISTRICT

Justices Say Juneau Principal Had A Right To Suspend Student

In a 5-4 decision, the U.S Supreme Court ruled that former
Juneau-Douglas High School Principal Deborah Morse was within her
rights to suspend a student and suppress a banner that said "Bong
Hits 4 Jesus."

Any message "perceived to promote drugs will be determined to be
controlled speech," Morse said in a teleconference after the
decision. "It will be illegal."

"This case eliminates the confusion over whether the First Amendment
permits regulation of student speech when such speech is advocating
or making light of illegal substances," school Superintendent Peggy Cowan said.

Doug Mertz, the Juneau attorney who argued the case of former student
Joseph Frederick, said the court allowed a free-speech issue to be
turned into a drug debate.

"This is an extremely dangerous precedent," Mertz said. "This is the
first time a subject matter is outside the protection of the First Amendment."

Mertz said he and Frederick would confer about a final option,
referring the case to the Alaska Supreme Court.

"We are going to look at it very closely," Mertz said. "We believe
the state constitution offers greater protection."

Mertz said the decision to seek the state's high court opinion rests
primarily with his client. Frederick was flying home from China when
the decision was handed down.

The Supreme Court tightened restrictions on student speech by siding
with Morse. The majority opinion and the school district repeatedly
referred to the "Bong Hits" banner as "pro-drug."

Frederick's argument asserted his right to express an opinion, even a
nonsensical one.

The court's dissenters said the decision in Morse v. Frederick
amounted to discrimination against specific viewpoints.

"The court does serious violence to the First Amendment in upholding
- - indeed, lauding - a school's decision to punish (a student) for
expressing a view with which it disagreed," Justice John Paul Stevens wrote.

"The court's ruling ... creates a drug exception to the First
Amendment," said Steven Shapiro, national legal director for the
American Civil Liberties Union.

The case was one of the most closely watched school free-speech cases
since 1969, when the Supreme Court ruled that Iowa high school
student Mary Beth Tinker could wear a black armband opposing the Vietnam War.

Now a nurse practitioner in St. Louis, Tinker was in the courtroom
during the March 19 oral argument in the "Bong Hits" case.

On Jan. 24, 2002, the Olympic Torch Relay was run through the streets
of Juneau. The event attracted news coverage as well as the
sponsorship of companies that included Coca-Cola. As the runners
passed along Glacier Avenue, 18-year-old Joseph Frederick and several
fellow students standing on a public sidewalk unfurled their "Bong
Hits 4 Jesus" banner.

"The content of the banner was less important to us than the fact
that we were exercising our free-speech rights to do a funny parody,"
Frederick later testified.

Principal Morse saw the banner, crossed the street and took it from
Frederick's hands. The teen began quoting Thomas Jefferson; she
suspended him for 10 days.

The Supreme Court's majority decision said: "A principal may restrict
student speech at a school event when speech is reasonably viewed as
promoting illegal drug use."

Mertz said the Supreme Court applied a "view point restriction" and
"finessed the issue by limiting it to a pro-drug issue."

Frederick held that he was not at a school-sponsored event. On that
day, the Olympic Torch passed down Glacier Avenue and past his large
banner. Frederick argued that since he did not attend school that day
he felt fully within his rights to speak as he did from public space
along the relay route. He was not on school grounds.

The Supreme Court flatly rejected Frederick's claim, saying JDHS
student conduct rules applied because he stood with fellow students
at a sanctioned event directing his banner at the school.

Chief Justice John Roberts delivered the majority opinion.

"The large banner was easily readable by the students on the other
side of the street," he said.

Morse thanked the Supreme Court for supporting a principal's ability
to control non-protected speech.

"The message on Frederick's banner is cryptic," Roberts said in the
majority opinion. But the school principal who suspended him "thought
the banner would be interpreted by those viewing it as promoting
illegal drug use, and that interpretation is plainly a reasonable one."

Morse also thanked the justices for language that absolved her from
personal liability.

Morse's order that students take down the banner and the suspension
of Frederick has been heard five times, from the school district to
the highest court of the land.

Only the 9th Circuit Court of Appeals sided with Frederick.

Mertz said the state constitution offers more protection from
censorship than the federal constitution, "unless there is a
compelling reason." Such a compelling reason would be disruption to a
classroom, he said.

"The school district admits there was no disruption of the
educational process," Mertz said.

The district, and others across the nation, now may have a difficult
job of figuring out what mention of alcohol or drugs to regulate -
from T-shirts to private conversations.

Cowan said the district holds student speech in high esteem. She said
the "Bong Hits" decision "will not affect student debate."

"If the court can do it here they can also do it in other cases where
the court feels do not deserve protection," Mertz said.

Frederick, now 23, said he later had to drop out of college after his
father lost his job. The elder Frederick, who worked for the company
that insures the Juneau schools, was fired in connection with his
son's legal fight, the son said. A jury recently awarded Frank
Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick, who has been teaching and studying in China,
pleaded guilty in 2004 to a misdemeanor charge of selling marijuana
at Stephen F. Austin State University in Nacogdoches, Texas,
according to court records.