Free Speech in Schools

OF BANNERS AND BONGS

Washington, DC

The Supreme Court Mulls a Schoolboy Prank

THE American constitution protects the right to free speech even of
those who have nothing to say. Take, for example, the banner that
Joseph Frederick, then an 18-year-old schoolboy, unfurled beside an
Olympic parade in Alaska five years ago. It read: "Bong hits 4
Jesus". Was he mocking Christianity? Or promoting marijuana? Neither,
says Mr Frederick. He copied the slogan from a snowboard. He did not
think it meant anything particular. But he calculated that it would
be funny and controversial. Plus, it might get him on television.

Deborah Morse, the head teacher at Mr Frederick's high school, was
not amused. She thought the banner was a deliberate attempt to
subvert the school's anti-drugs policy, and worried that it would
spark unruliness. Students had been excused classes so they could
watch the parade. Some were already throwing snowballs and plastic
bottles from the pavement.

On seeing Mr Frederick's banner, Ms Morse marched up and ordered him
to furl it. When he refused, she gave him a five-day suspension.
Annoyingly, the youth quoted Thomas Jefferson at her. She doubled his
suspension. He sued. The case has been appealed all the way to the
Supreme Court, where it was heard on March 19th.

At the heart of the case is the tension between free speech and
school discipline. Precedent pulls both ways. In 1969, the Supreme
Court said a school could not stop students from wearing black
armbands to class to protest against the Vietnam war. Pupils do not
"shed their constitutional rights...at the schoolhouse gate," said
the justices; they can say what they like so long as they do not
substantially interfere with school discipline. Subsequent cases
qualified this right a little. For example, in Bethel v Fraser in
1986, the court said a school was allowed to punish a student who
gave a speech bursting with sexual innuendo.

Mr Frederick is represented by the American Civil Liberties Union.
His case has several prongs. First, he was outside school, so the
head teacher had no jurisdiction over him. Second, his banner was not
aimed at interfering with school discipline. Third, he says he was
making a statement about free speech, a right he had learned about in
class but which the school did not, in his view, honour.

The school's case is that Mr Frederick was at a school-approved event
on a school day, so the principal was entitled to tell him what to
do. Further, since illegal drugs are harmful and the school opposed
them, Mr Frederick's banner was likely to "undermine the school's
basic educational mission". And a school can censor statements that
do that, argues Kenneth Starr (of Monica Lewinsky fame), who is
representing the school board pro bono.

Listening to both sides' arguments, the nine justices seemed torn. If
they swallow all Mr Starr's reasoning, that would give schools vast
leeway to restrict pupils' speech. That is why several conservative
Christian groups are siding with the young pot enthusiast; they worry
that politically-correct schools will punish devout students for
expressing Biblical views about, for example, homosexuality.

On the other hand, the case is not only about free speech. It is also
about money, noted John Roberts, the chief justice. Mr Frederick is
suing his former head teacher personally for damages. Mr Roberts was
not the only justice to worry that if teachers live in fear of a
ruinous lawsuit every time they tell a pupil to be quiet, they might
find it hard to keep order.

The court will probably take some time to rule. Some predict that it
will uphold Mr Frederick's right to make his point, whatever it was,
but scotch his attempt to squeeze damages out of Ms Morse. Mr
Frederick, who was arrested for selling marijuana while at college,
now teaches English in China, where free-speech-loving students are
treated less gently.