SAVING FREE SPEECH AND JESUS

Religious And Conservative Groups Support The 'Bong Hits 4 Jesus'
Banner Under Fire At The Supreme Court

"Virtually any student speech that school officials find controversial
or offensive hangs in the balance on how the Supreme Court decides
'Bong Hits 4 Jesus.' " David Hudson, First Amendment Center,
Vanderbilt University, American Bar Association's "March Preview" of
Supreme Court cases

In the long, embattled history of student free-speech cases, what
makes the Deborah Morse, Juneau School Board v. Joseph Frederick case
startlingly unique is the number of conservative and religious
organizations supporting Joe Frederick's First Amendment right to
unfurl his banner "Bong Hits 4 Jesus."

Among his allies are the Christian Legal Society, Pat Robertson's
American Center for Law and Justice, the high-powered Alliance Defense
Fund, and John Whitehead's Rutherford Institute, the nation's most
active litigator for free exercise of religion--and also a persistent
critic of the administration's war on the Bill of Rights.

On the side of high school principal Morse and the Juneau Board of
Education are, of course, the national associations of school boards,
secondary-school principals, and school administrators.

Why have the religious and conservative groups become comrades, in
this case, of the ACLU, Student Press Law Center, and Feminists for
Free Expression? The reason is that the core of the "Bong Hits 4
Jesus" case is not the famous Tinker decision in 1969 in which the
court ruled that student free speech can be censored only if it
disrupts school activities or violates the rights of others.

The John Roberts Supreme Court is essentially dealing with a later,
much more restrictive Supreme Court decision (Hazelwood School
District v. Kuhlmeier, 1988) that gives principals and school boards
the power to censor any student speech that is contrary to the "basic
educational mission of the school"--as defined by each public school
principal and school board in the country.

Also likely to be affected by "Bong Hits 4 Jesus" is the college
student press, because a recent Seventh Circuit Court of Appeals
ruling in the Hosty case applied the Kuhlmeier standard to colleges as
well as secondary schools. The Supreme Court refused to review that
Hosty decision, which means it can be referred to as a supportive
precedent by other circuit courts.

The conservative and religious groups are concerned with this case
because if the Roberts Court uses Kuhlmeier against "Bong Hits 4
Jesus," as Jacob Sullum notes in the New York Post, "where does that
leave students who condemn abortion or homosexuality, question
evolution, or insist on the importance of Holy Scripture in resolving
moral issues"? A "politically correct" principal or school board could
decide that these student-ignited controversies interfere with "the
basic educational mission" of that particular school.

In the March 19 oral arguments at the Supreme Court, Kenneth Starr,
the lawyer for the principal and the school board in the "Bong Hits 4
Jesus" case, began by unfurling the Kuhlmeier standard:

"Illegal drug use and the glorification of the drug culture are
profoundly serious problems for our nation," Starr argued, and if the
court gives First Amendment protection to the banner, school anti-drug
policies around the country--and like that of Juneau High
School--would be undermined.

Justice Anthony Kennedy, often a First Amendment supporter--and a
likely swing vote if there's a 5-4 decision--gladdened Starr by
stating that Joe Frederick's banner "was completely disruptive of the
theme that the school wanted to promote."

And Chief Justice Roberts chimed in: "I thought we wanted our schools
to teach . . . something besides just basic elements . . . including
character formation. . . . Can't the school decide that it's part of
its mission to prevent its students from using drugs?"

Justice Stephen Breyer (who often tends to speak as if everyone else
is a student and he is the professor) even questioned whether First
Amendment law need apply in this case. Astonishingly, Breyer said: "I
don't think [the principal] has to be able to read [such First
Amendment standards] as content discrimination, viewpoint
discrimination, time-place [context]. The principal doesn't know the
law. His job is to run the school." (Emphasis added.)

When a Supreme Court justice declares that a public school principal
has no obligation to know the law of the First Amendment before
deciding whether or not to censor student speech, his respect for the
very idea that students have First Amendment rights is so low that he
should have recused himself from this case.

Justice David Souter felt it was necessary to go back to the 1969
Tinker decision and its rule that student speech was not protected if
it caused disruption in school matters. That still remains one of the
criteria even under Kuhlmeier. Souter asked where Joe Frederick's
banner actually caused disruption--unless, he pointedly added,
"disruption simply means any statement of disagreement with a position
officially adopted by the school." I think we can count on Souter to
affirm the First Amendment.

James Madison, who wrote the First Amendment, would have been
heartened by the clear, firm perspective of Justice Samuel Alito in
this case. I have been critical of Alito's views of the Fourth
Amendment and other criminal-justice constitutional issues. But as he
demonstrated when he was on the Third Circuit Court of Appeals, Alito
knows why the First Amendment had to be added to the 1787 Constitution
four years later.

Responding to the argument that a school can cut off student speech
that is inconsistent with its "basic educational mission," Alito said:
"I find that a very, very disturbing argument because schools . . .
can [thereby] define their educational mission so broadly that they
can suppress all sorts of political speech expressing fundamental
values of the students [that the principals judge to be] inconsistent
with their educational missions." Raise a glass to Sam Alito!

In circulating his opinion among his fellow justices, I hope Alito
will remind them that Joe Frederick was intentionally across the
street from his high school, and that even in the otherwise
restrictive Kuhlmeier decision, that court recognized that "the
government could not censor [student speech] outside the
school"--including "streets, parks, and other traditional public
forums that time out of mind, have been used for . . . communicating
thought between citizens discussing public questions."

Joe Frederick and his banner were on a public street across from the
school. If this court fails the First Amendment on other counts in
this case, at least students won't be entirely gagged when they're
away from school. But inside schools, maybe Sam Alito can save free
speech--including about Jesus, pro or con.

Joe is now a high school English teacher in China. He sure is needed
there.