THE LAW IS ON THE SIDE OF THE BOYS THIS TIME

Bad cases, they say, make bad law. You will not find many cases at the
Supreme Court as bad in every way as the pending case of Morse v.
Frederick. It was argued two weeks ago and will be decided before the
court's term ends in June. The omens are not auspicious.

The Morse in this case is Deborah Morse, principal of the public high
school in Juneau, Alaska. The Frederick is Joseph Frederick. At the
time of this brouhaha, he was an 18-year-old senior student. The case
began on Jan. 24, 2002, when the famed Olympic torch was being relayed
from Athens to Salt Lake City, there to ignite the Winter Olympic
Games. The small parade would pass by the school in Juneau on its way.

The facts are not greatly in dispute. As the torch-bearer neared,
Frederick and his buddies suddenly unfurled a 14-foot banner that
read, "Bong Hits 4-Jesus." Principal Morse rushed from the sidelines,
confiscated the banner, and summarily suspended the youth for five
days.

When he impudently mentioned the First Amendment, she gave him five
days more. He sued for violation of his civil liberties. He lost in
the District Court but won a sweeping victory on appeal to the 9th
Circuit. School officials appealed. Now we await the high court's
imperial disposition.

If this were a perfect world, the case would have never arisen at all.
Frederick would have unfurled his banner with its strange device. The
principal would have rolled her eyes and muttered a teacher's
consolation: Boys will be boys. End of incident. Now we await the most
significant opinion in 20 years in the area of student speech.

Oral argument on March 19 set off some entertaining fireworks but
served mainly to blow smoke in the eyes of the facts. These are:

(1) The parade was not a school-sponsored event. It was sponsored in
Juneau by the local bottler for Coca-Cola.

(2) Joe Frederick was not playing hooky. Classes had been dismissed
for the parade. He had every spectator's right to engage in peaceful
demonstration on a public street.

(3) His banner was not "obscene" or "pornographic." It libeled no one.
It did not advocate unlawful conduct. To the extent that the banner
was understood at all, it presumably urged the legalization of
marijuana. So? Unless the Constitution's First Amendment had lost its
meaning, this was protected free speech in its most elementary form.

So much for the facts of the case. They are all on the student's side.
What of the law of the case? It comes down on his side also. Three
cases are directly on point.

The first precedent developed in Des Moines in 1969, when the high
court upheld the free speech rights of the Tinker children: They had
come to school wearing armbands in opposition to the war in Vietnam.
The second came in 1986, when the court upheld a suspension imposed
upon Matthew Fraser, in Pierce County, Wash.: He had delivered a
mildly salacious speech at a high school assembly. In the third case,
Hazelwood School District v. Kuhlmeier, the court in 1988 upheld the
power of school authorities in suburban St. Louis to censor articles
in a school newspaper.

Notice the huge distinction between these three precedents and the
pending case from Juneau: Every one of them involved speech on school
property, on school time, under school authority. Here the
provocative speech was on a public street, on free time, in the midst
of a parade sponsored by the local bottler of Coca-Cola.

Justice Samuel Alito appeared to grasp these elements. Justices David
Souter and Ruth Ginsburg also indicated some inclination to stand by
the First Amendment. It was keenly disappointing to hear Justice
Antonin Scalia and Chief Justice John Roberts appear to side with the
school authorities.

When Frederick's counsel argued that there had been no substantial
"disruption" until Principal Morse rushed into action, Scalia
attempted to redefine the meaning of "disruption." He appeared to
suggest that any public disagreement with a school's anti-drug
"message" could be punished.

Where did he get an idea like that? Not in the Constitution, that's
for sure.

We'll see how it all turns out. If a vote were taken in the hallowed
chambers of the press room, Mr. Justice Kilpatrick, meaning me, would
vote to affirm the 9th Circuit. Boys will be boys! I know. Once upon a
time, I was one.