FREE SPEECH, IN AND OUT OF SCHOOL

A case featuring an attention-seeking kid holding an absurd sign
should not compel the U.S. Supreme Court to limit free speech near
high schools.

In 2002, 18-year-old senior Joseph Frederick stood across the street
from his high school and unfurled a 14-foot banner that read "Bong
Hits 4 Jesus." Frederick invoked his First Amendment right to free
speech. An unamused principal, unable to maintain a cool head, ripped
up the banner and suspended him, in part for using the word bong,
interpreted as defiance of the Juneau, Alaska, school's anti-drug
message. It was smart-alec behavior on the teen's part, but was it
protected speech? The line between what falls within protected speech
and what does not was appropriately drawn in 1969 when the Supreme
Court ruled in Tinker v. Des Moines, (Iowa) School District that
students have a right to engage in political speech.

The court should not overturn Tinker. But there are limits to free
speech, particularly inside a school. School administrators, for
example, can regulate speech on campus or at a school-sponsored event
if it is vulgar, disruptive or interferes with education. An
administrator of any school, public or private, needs that authority.
A 1986 Supreme Court case from Washington state, Bethel School
District v. Fraser, sharpened the line when it upheld a school's
right to restrict students from vulgar speech at a school assembly.

Last week, in oral arguments before the high court, the attorney for
the school district, former special prosecutor Kenneth Starr, argued
that Frederick's sign glorified marijuana in defiance of the school's
anti-drug message. Justice Anthony Kennedy took issue with the
provocative banner because, he said, it was not indicative of the
kind of image the school wanted to portray.

If the banner had been held on campus, that would be an argument. But
Frederick's banner was off campus during a non-school event, an
Olympic Torch relay. The school allowed students to attend the relay
but Frederick skipped school that day and went to the event on his own.

The student was in a public setting -- across the street from the
school but not on its grounds -- and should have been free to
exercise free speech. The Court of Appeals for the 9th Circuit
appropriately sided with Frederick, as have the American Civil
Liberties Union and religious groups such as the Christian Legal
Society, the Rutherford Institute and a law center founded by the
Rev. Pat Robertson.

On the other side are anti-drug organizations and two former U.S.
drug czars. We are sympathetic to their goal of controlling drugs,
but this is not a drug case. It is a speech case.

With children under its charge, and particularly on its property, a
school needs to have a degree of authority, including over speech.
That is why, for example, The Seattle Times opposes the bill
sponsored by Rep. Dave Upthegrove, D-Des Moines, to give editorial
control of high-school newspapers to the students.

Another example of schools' rights, approved by the Ninth Circuit
Court after the Columbine shootings, is the expanded schools' ability
to sanction students for "scary" speech, even when it has no direct
impact on the school. Gun-free and drug-free zones have drawn a
security perimeter around schools. Appropriately so.

But somewhere comes a limit to the school's authority. Outside school
grounds, where politics meet the streets, school regulations fade and
the rules are the same as applies to citizens generally, including
free speech. Within the schools, access to free speech -- from gang
clothing to graffiti to pronouncements at school ceremonies -- is
necessarily within the realm of controlled speech.

Modern principals and superintendents, as well as the Supreme Court
justices, should understand the distinction between on and off
campus, between a regulated environment and the more tolerant regime outside.