THE WRONG LESSON

In the 'BONG HiTS 4 JESUS' case, the Supreme Court muddles the
message of an important precedent.

ON THE SAME DAY it expanded free speech in the political process, the
Supreme Court needlessly narrowed it in the nation's public schools.

In upholding the suspension of an Alaska high school student for
unfurling a banner declaring "BONG HiTS 4 JESUS" during a field trip,
a 5-4 majority drained the life out of one of the court's landmark
pronouncements: that children do not "shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate."

The quotation comes from Tinker vs. Des Moines School District, a
1969 case in which the court overturned the suspension of students
who had defied school officials by wearing black armbands to protest
the Vietnam War. Then as now, the notion that schoolchildren would
have opinions, let alone the constitutional right to express them,
was controversial.

But Tinker wasn't the educational equivalent of putting the asylum in
the charge of the inmates. Justice Abe Fortas' majority opinion made
it clear that school administrators could limit student speech when
it would "substantially interfere with the work of the school or
impinge upon the rights of other students." They could not squelch
speech simply to avoid "the discomfort and unpleasantness that always
accompany an unpopular viewpoint."

"Discomfort and unpleasantness" is a fair description of what school
administrators in Des Moines tried to prevent by warning 15-year-old
John Tinker and his 13-year-old sister Mary Beth against wearing
antiwar armbands.

It also describes the result of a decision by 18-year-old Joseph
Frederick to hold his bong banner before TV cameras in 2002 as the
Olympic torch relay passed through Juneau. As if realizing that this
was hard to square with the Tinker ruling, Chief Justice John G.
Roberts Jr. emphasized another school-speech precedent: a 1986 case
in which the court upheld the suspension of a student who used sexual
imagery in a speech at a school assembly. But the bong banner wasn't
obscene; it was inane.

In ruling against Frederick, the court has muddled the teaching of
Tinker and has made it easier for hypercautious school officials to
clamp down on a wide range of student speech, some of which will be
more serious than the bong banner. The only saving grace is that two
of the justices who signed Roberts' opinion, Samuel A. Alito Jr. and
Anthony M. Kennedy, filed a separate opinion in which they said the
decision "provides no support for any restriction of speech that can
plausibly be interpreted as commenting on any political or social
issue" -- including "the wisdom of the war on drugs." Alito and
Kennedy would have been truer to their concern for free speech if
they had dissented outright, as did Justices John Paul Stevens, Ruth
Bader Ginsburg and David H. Souter.

Stevens should have the last word on this unfortunate U-turn by the court.

He noted that Roberts, in his majority opinion in the issue-ads
ruling, had said that when the 1st Amendment is involved, "the tie
goes to the speaker." Turning the chief justice's words against him,
Stevens argued that in the bong banner case, "the tie would have to
go to Frederick's speech, not to the principal's strained reading of
his quixotic message."