A LESS-THAN-BANNER RULING

Of Bong Hits And First Amendment Freedoms

THE SUPREME Court fractured on a case involving student speech rights
this week. The result was not good for First Amendment freedoms on
campus.

In 2002, then-high school senior Joseph Frederick unfurled a banner
that read "Bong Hits 4 Jesus" during a school-sanctioned event across
from his Juneau, Alaska, campus. His principal promptly tore it down
and suspended the student. Mr. Frederick challenged the punishment,
claiming that the principal had violated his First Amendment rights,
and the U.S. Court of Appeals for the 9th Circuit agreed. But on
Monday the Supreme Court reversed that decision. Chief Justice John G.
Roberts Jr. wrote for the majority: "The 'special characteristics of
the school environment' . . . and the governmental interest in
stopping student drug abuse -- reflected in the policies of Congress
and myriad school boards, including [that of Juneau-Douglas High
School] -- allow schools to restrict student expression that they
reasonably regard as promoting illegal drug use."

One objection to this conclusion is: Who knows what the banner was
promoting? As Justice John Paul Stevens wrote in his dissent: "To the
extent the court independently finds that 'Bong Hits 4 Jesus'
objectively amounts to the advocacy of illegal drug use -- in other
words, that it can most reasonably be interpreted as such -- that
conclusion practically refutes itself. This is a nonsense message, not
advocacy."

A more serious objection concerns the chief justice's expansion of the
kinds of speech that can be restricted in school. As Justice Stephen
G. Breyer noted, the fact that illegal drugs are harmful to students
is not a sufficient explanation for banning a broad category of campus
expression. The same reasoning can apply to any number of contentious
issues. In addition, Mr. Roberts's language suggested that the stated
policies of local school boards or other relevant governmental
entities should determine in part whether expressing a particular view
is permissible at school. Two members of the majority -- Justices
Samuel A. Alito Jr. and Anthony M. Kennedy -- explicitly rejected that
argument in a concurring opinion, so the court's decision did not
enshrine it. But the principle is nonetheless disturbing and, if
applied in different cases later, has the potential to shut down
student speech on a range of controversial subjects.

Issues of drug use and drug policy are matters of serious contention.
High school students must be able to debate them frankly -- and that
might even involve students taking the position that bong hits are not
that bad.