COURT MULLS OVER PROTECTED SPEECH

Is It Free Speech When No One Knows What You Mean?

The questions of what constitutes protected speech and what determines a
school event are two issues emerging as a Juneau free-speech case winds its
way through federal court.

Joseph Frederick was an 18-year-old Juneau-Douglas High School senior last
year when he and others, including nonstudents, displayed a banner on a
sidewalk across from the school during the passing of the Olympic Torch
Relay in late January. The banner read, "Bong hits 4 Jesus."

School Principal Deb Morse took away the banner and suspended Frederick for
10 days, citing inappropriate and defiant behavior, among other reasons.
Superintendent Gary Bader and the Juneau School Board later upheld the
suspension, but reduced its length.

Since then, Frederick sued the School Board and Morse, and the issue became
a federal case about free speech.

The Alaska Civil Liberties Union has provided financial and legal
assistance, said Frederick's attorney, Douglas Mertz of Juneau.

Frederick wants an injunction to keep Juneau schools from taking similar
actions in the future, removal of the suspension from his school records
and unspecified monetary damages, Mertz said.

Mertz and David Crosby of Juneau, an attorney representing the School Board
and Morse, have both filed briefs in the past four months calling on the
U.S. District Court in Alaska to find in their favor without holding a trial.

Attorneys ask for what's called summary judgment when they believe that no
important facts are in dispute and the law is on their side.

The school denied Frederick his right to free speech under the state and
U.S. constitutions when it seized a banner he was displaying in a public
place and then punished him for displaying it, Mertz argued in court documents.

Frederick has said the phrase, which he said is used on a brand of
snowboard, was intended as humor and an exercise of free speech, and not
intended to advocate any message about drugs or religion.

"We thought we had a free-speech right to display a humorous saying,"
Frederick said in an affidavit filed in court papers. "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."

The school district considered "bong hits" a reference to inhaling
marijuana through a pipe, and said the banner could be construed as
advocating illegal drug use.

Mertz argued that the Supreme Court has said the Bill of Rights applies to
students, even on school grounds, except in limited cases. The exceptions
have to do with students who disrupt school or incite imminent violence.

Mertz said the school has admitted in affidavits that the banner did not
disrupt classroom work. The banner wasn't obscene or threatening, he added.

Courts have said a school can't restrict speech based on its content,
except for vulgar or obscene language at school-sponsored events, Mertz
argued. A student's freedom of speech is even less limited off campus, he said.

Among the issues is whether Frederick and other students were attending a
school function when they watched the relay. Mertz said the high school had
allowed, but not required, students to leave class and watch the relay.

The School Board, in its motion for summary judgment, argued that the
students watching the relay were under school supervision. The school had
the authority to discipline Frederick for displaying a banner it reasonably
construed as advocating the use of illegal drugs, Crosby said.

Crosby argued in court documents that Frederick wasn't suspended solely for
displaying the banner, but for being truant by missing the first class that
day, refusing Morse's instructions to put down the banner and go to her
office, and refusing to cooperate in explaining the banner's meaning or
identifying the other students involved in the incident.

Displaying offensive material such as the banner would have merited no more
than a detention, Crosby said.

Moreover, it's not a free-speech issue, Crosby argued in court documents,
because Frederick himself has said he wasn't trying to express anything in
particular. Statements that have no meaning or that can't be understood
aren't protected speech, Crosby said.

Crosby further argued that the Supreme Court has found that schools can
discipline students for advocating illegal drugs even if the students don't
disrupt the school.

And Crosby said there's a factual question whether Frederick was being
disruptive.

School officials have said some people near the banner were throwing
snowballs and plastic Coke bottles, although they didn't identify Frederick
as one of them. Frederick said in an affidavit that he and other students
holding the banner didn't throw anything.

Mertz, in response to Crosby, said it was inconsistent to say the banner
had no particular message but was advocating illegal drugs.

The School Board and Morse also have asked the court to find that they are
immune from Frederick's legal claims, and that if they can be sued, they
are immune from punitive damages.

Government officials aren't liable for civil damages if their job-related
actions don't clearly violate an established right of which a reasonable
person would have known, Crosby said.

Mertz responded that Morse and other school officials "consciously acted in
the face of well-established principles of law" relating to students' free
speech and so they aren't entitled to immunity.

U.S. District Judge John Sedwick is hearing the case. He hasn't responded
yet to a request by Crosby to hear oral arguments on the motions for
summary judgment.