ANOTHER FIRST AMENDMENT ISSUE

The Supreme Court recently (March 19, 2007) heard Morse v. Frederick,
a Supreme Court case about free speech for high school students.

The case arose in January 2002, when Coca-Cola and other private
sponsors supported a "Winter Olympics Day." An 18-year-old high
school student, Joseph Frederick, didn't go to school and later
attended the rally for the Winter Olympics Torch Relay. Fellow
students joined him since the students were released from class that
day so that they could watch the Olympic torch pass by. There were
fistfights and snowball fights at this "educational" event, but
Frederick and his friends did not participate. Instead, they unfurled
a 14-foot "BONG HiTS 4 JESUS" banner to get on TV. He took the phrase
from a snowboard and viewed it as meaningless. I checked with my
brother and he confirmed that this slogan is funny.

There is controversy over whether the students were on a field trip
or other supervised event. The students did not have to obtain
parental permission slips as would be required for such an event and
were permitted to leave the rally. Nonetheless the Juneau school
claimed that at the rally the school was in session (they must have
done a few hits).

The principal, Deborah Morse, then grabbed and crumpled the banner.
She later suspended Frederick for ten days. He says she suspended him
for five and then doubled it when he quoted Thomas Jefferson, she
denies this. The principal and school conceded that the display did
not disrupt nor was expected to disrupt classroom work, but was shut
down because it advocated illegal drug use.

Frederick then sued Morse and the school board because, he says, it
violated his free-speech rights. He also sued Morse arguing that his
rights were so clearly established that Morse was not entitled to
legal immunity.

One thing to note about this event is that letting students out of
class to attend some meaningless rally for a sporting event (and not
even the NFL) was a disgrace. One would hope that school boards would
be a little more careful about hiring administrators with so little
respect for classroom learning.

The school's case is weak. First, if this speech was not part of a
student event, the case is easy since the school then had no basis
for punishing Frederick. The Ninth Circuit held that school was in
session, but it's hard to see what facts support this conclusion.

Second, even if it was a school event, the law clearly favors
Frederick. A previous Supreme Court case, Tinker v. Des Moines
Independent Community School District established that the school may
interfere with interpersonal communication only if it disrupts school
learning or invades others' rights. This has since been narrowed so
as to allow schools to ban indecent speech (Bethel School District
No. 403 v. Fraser) and control the content of school-paid-for
activities, particularly when others might view the expression as
being endorsed by the school (Hazelwood School District v.
Kuhlmeier). Neither exception applies here.

Third, this is a terrible policy. Dahlia Lithwick of Slate points out
that the rule the Juneau school board advocated could ban clear and
polite expressions of ideas. It could get rid of banners or T-shirts
that say "Change the Marijuana Laws." Murad Hussain of the Yale Law
Journal points out that the federal courts are already well down this
path having permitted schools to ban Marilyn Manson T-shirts because
of their anti-religious content and religiously motivated statements
opposing gay sexuality. Other schools have attempted to ban T-shirts
with confederate flags. It is worth noting that schools would never
ban anti-drug, pro-gay, or pro-Lincoln messages. They are in effect
claiming a right to censor some viewpoints. Such censorship allows
little room for high school students to engage in a free and open
discussion of ideas, which should be one of the hallmarks of an
education. This is important both as a way for society to discover
the truth and for individuals to decide what to believe and why to
believe it. The Juneau school's actions were not an attempt to shut
down obscenity, lewdness, fighting words, etc, but rather an attempt
to control what students do by controlling what they believe. What
could be more un-American?

Entrenched school officials often try to shut down robust debate
whether it is over the Vietnam War or race differences in IQ. After
all, such discussion calls into question some of the authorities'
policies and many officials neither can nor want to defend. For
example, it's not easy to defend the criminalization of harmless
recreational drugs like alcohol in the past or marijuana today and
many drug-prohibitionists and DARE fans know this. It also tends to
out zealots (for example, administrators who favor harsh punishment
for students caught with marijuana) when they'd prefer to stay in the closet.

Fourth, the Juneau school board's proposed rule is incredibly vague.
Their attorney, Ken Starr (yes, the oral-sex inquisitor) argued that
the school may restrict student expression because it has the task of
getting students to adopt the "habits and manners of civility" and
"values of citizenship." Furthermore, the interpretation of a
particular banner, T-shirt, or other message must be left to the
frontline message interpreter (that is, administrator). This is so
unclear as to be no rule at all.

This case is big because of its centrality to free speech in high
schools. We can only hope that Morse has to pay through the nose for
her Constitutional illiteracy. It's best to keep the enemies of
liberty on the run..

Stephen Kershnar is a philosophy professor at SUNY Fredonia. His
column appears every other week. Comments on this column may be sent
to editorial@observertoday.com