PRO-CON: SUPREME COURT HEARS 'BONG HITS' CASE

Ruling In Favor Of The School District Could Lead To Slippery Slope Of Lost
Rights And Increased Risk Of Censorship.

As the Supreme Court reviews the case of one Alaskan high schooler who says
his right to free speech was violated by his principle, one of Pepperdine's
own will be waiting anxiously for a ruling.

School of Law Dean Ken Starr acted as counsel in a case now known as the
"Bong Hits for Jesus" case, in which Joseph Frederick, then a high school
senior, was suspended for raising a banner off campus, but during school
hours. The case has the potential to become a major decision for or against
the rights of students to exercise free speech.

Starr says this case is not about free speech, and if his client, the
Juneau high school district wins, precedent will allow all kinds of
messages to be censored by school boards and principals.

But whether Frederick might support drug use is not the question at
hand. As is usual in free speech cases of importance, the message of the
speaker is not a popular one (at least not with those in charge).

By ruling against Frederick, the Supreme Court may also be ruling against
the rights of students everywhere. Frederick's message may seem to be about
drug use, but that is not important when it comes to student speech.

The facts stack up on Frederick's side in terms of making the argument that
free speech is still his right. Though Frederick was a student at
Juneau-Douglas High school, and though he was present when the torch was
carried by, he was not with the rest of the students from the school, but
across.

And before students were let out to watch the torch as it passed by,
Frederick was not in class. He had not attended school that day.

Frederick was 18 years old at the time of the incident, so he was an adult,
expressing a view in a public place.

Moreover, the idea that he could be disciplined for advocating the use of
illegal drugs is clouded by the unusual laws on the use of marijuana in
Alaska. State law in Alaska guarantees citizens to a special right to
privacy, one that is not provided by the federal government. Under this
privacy law, Alaskan officials must prove that it is not a significant
violation of the right to privacy to use marijuana recreationally at
home. The government has never proven this, and so as an adult in Alaska
on a public sidewalk, it could be ruled that Frederick is advocating a
legal activity.

The U.S. Court of Appeals for the 9th Circuit ruled in Frederick's favor
for all these reasons.

But the school district argues that since many other students were present
at the event, that class was let out so that students could watch the torch
pass by and that though it was public property, a school-sponsored event
was taking place.

Under the standards of Tinker v. Des Moines, Frederick is protected. In
this case from the 1960s, it was ruled that students wearing black armbands
in school to show they did not support the Vietnam War could do so, as long
as it was not a disruption in class. Students did not leave their
Constitutional rights at the schoolhouse gate, the justices said.

A ruling for the school district in this case would mean students would
have no rights to part ways with at the schoolhouse gate at all, since they
would be stripped from any student, on public property or at school, if an
authority figure who did not agree with their message chose to censor it.

Students might lose the freedom to express their views anywhere, if school
administrators decide those messages go against the school's mission. For
this reason, many groups including gay rights associations and religious
groups have united behind Frederick. Clearly, most of them would not agree
with the message of his sign, if it had a message at all. But they
recognize this case is about student freedom, not about drug culture. No
matter what the justices of the Supreme Court might think of Frederick and
his message, they should consider the many students whose rights could be
violated by the precedent this ruling would create.