Give Me Liberty

JOE FREDERICK, FIRST AMENDMENT IDOL

Will the Supreme Court Hold High the Banner 'Bong Hits 4 Jesus,' Or
Crush Free Speech?

"In our system, students may not be regarded as closed-circuit
recipients of only that which the State wishes to communicate. They
may not be confined to expression of those sentiments that the State
officially approved. Supreme Court, Tinker v. Des Moines Independent
Community School District , 1969

"That boards of education are educating the young for citizenship is
reason for scrupulous protection of Constitutional freedoms of the
individual, if we are not to strangle the free mind at its source and
teach youth to discount principles of our government as mere
platitudes. Supreme Court, West Virginia State Board of Education v.
Barnette, 1943

We are in a time when many Americans are far more knowledgeable about
Anna Nicole Smith than about the Bill of Rights--its contents and its
future as the Constitution keeps shrinking. For example, do you know
each of the five freedoms listed in the First Amendment?

But during this perilous indifference to why and how we are
Americans, a young citizen in Juneau, Alaska--Joe Frederick--is
becoming a model to Americans of all ages on how to live the First
Amendment. Even before his current battle with his high school
principal and the Juneau school board came before the Supreme Court
on March 19, Frederick, earlier in his school years, had been
threatened with suspension for refusal, on First Amendment grounds of
conscience, to stand and pledge allegiance to the flag.

As Justice Robert Jackson said for the Court in a 1943
school-suspension pledge-of-allegiance case (West Virginia State
Board of Education v. Barnette):

"No official, high or petty, can prescribe what shall be orthodox
politics, nationalism, religion, or any other matters of opinion, or
force citizens to confess by word or act their faith therein." Those
words should be on a laminated card in the pockets of every
principal, school board member, and FBI agent in the country.

By this June, the John Roberts Supreme Court will have ruled on
whether the First Amendment protects Joe and his unorthodox banner,
along with much other student speech around the country.

The case of "Bong Hits 4 Jesus" is Deborah Morse, Juneau School Board
v. Joseph Frederick.

I recognize that what the justices say during oral arguments does not
necessarily predict the outcome of a case; but the comments on March
19--particularly by Chief Justice John Roberts and the current swing
voter, Anthony Kennedy--could lead a majority of the court to gravely
limit the free-speech and free-press rights of public school students
(including at public colleges) for many years.

Having covered student press wars around the country for the Voice
and for my books on the Bill of Rights, I've found that those
students who become most actively and durably passionate about the
First Amendment have worked on school newspapers embroiled in these
press wars with principals and school boards. Most other students are
indifferent.

If this Supreme Court muzzles the current and future generations of
these First Amendment student warriors, even most subsequent American
adults will be indifferent to the First Amendment--from which all our
other liberties flow. My rites of passion on this issue began when I
was fired as the editor in chief of my college paper, the
Northeastern News in Boston, for enraging Northeastern University's
president by fomenting controversy. In the introduction to my book
The First Freedom: The Tumultuous History of Free Speech in America
(1980), I credited school president Carl Ell for inspiring me to
embrace the Constitution.

Supported by the ACLU, Joe Frederick's odyssey to the Supreme Court
began five years ago, when he was 18, a senior in high school. The
2002 Olympic Torch Relay was scheduled to pass by the school. Across
the street, Joe unfurled a 14-foot banner: "Bong Hits 4 Jesus."

What was the message? He was having fun, he says, and calling
attention to himself and maybe getting on television. "It was
certainly not intended as pro-drug or religious," he recently told
Nina Totenberg on National Public Radio. "I conveyed this to the
principal by explaining that it was intended to be funny,
subjectively interpreted by the reader, and most importantly, an
exercise of my inalienable right to free speech."

The principal, Deborah Morse, is praised by her attorney in this
Supreme Court case, Kenneth Starr (yes, the Kenneth Starr, of Clinton
impeachment fame) as a "lifelong educator" deeply concerned with the
anti-drug message--and mission--of her school.

Seeing Joe Frederick's banner, this lifelong educator rushed across
the street and ordered him to take it down. Undaunted, the student
cited his First Amendment rights, whereupon the principal grabbed the
banner, mashed it to the ground and, on the spot, suspended Joe for
five days for--as she and the school board claimed--promoting drug
use and thereby violating the school's basic educational mission.

Still not intimidated by this dedicated educator, Joe brought Thomas
Jefferson and his Declaration of Independence into the conversation
to defend the banner. In fiery response, Deborah Morse immediately
doubled the suspension.

I know Kenneth Starr, having interviewed him often in the Clinton
years and later when he volunteered to teach the Constitution at a
"disadvantaged" Washington, D.C., high school. Having read his book
First Among Equals: The Supreme Court in American Life (2002), I am
not surprised that he eagerly took this case on behalf of the
principal and the school board. He's doing it pro bono. As he writes
in the book, he argued the government's case as solicitor general at
the Supreme Court against the free-speech rights of flag burners. He
lost 5 to 4.

Next week: Starr's skillful strategy during oral arguments in Morse
v. Frederick, which came to the court of final judgment after the
Ninth Circuit Court of Appeals upheld Joe Frederick's First Amendment
right to unfurl "Bong Hits 4 Jesus."

Worth noting: At an early point in this case, as NPR's Totenberg
reported, "Joe Frederick and his father offered to settle the case if
the school put on an assembly at which students would hear from an
ACLU representative and a school board official explaining what
student rights are."

The Juneau School Board refused what would have been a memorable
teaching moment for the students, faculty, and school board. It is
now up to the Roberts Court to either support Joe Frederick or flunk
the First Amendment for what could be at least a generation. The
court will focus on whether any student speech that violates "a
school's basic mission" can be forbidden. Each school would decide
that for itself.