COURT PROBES LIMITS ON SPEECH IN "BONG HITS 4 JESUS" CASE

Washington -- The Supreme Court dissected a teenager's sign Monday and
tried to divine whether its "Bong Hits 4 Jesus" message was advocating
drug use or just talking nonsense.

Students' free speech rights could hinge on the outcome of the
case.

Joseph Frederick was a high school senior when he held up the 14-foot
"Bong Hits" banner in Juneau, Alaska, five years ago. He said he was
testing his constitutional right to free speech. His principal thought
he was delivering a pro-drug message and suspended him. If the
justices side with principal Deborah Morse, the result could be
greater restrictions on student speech.

"I thought we wanted our schools to teach something, including
something besides just basic elements, including the character
formation and not to use drugs," Chief Justice Roberts said Monday.

But the court could rule for Frederick if it determines that he was,
as he has contended, conducting a free-speech experiment using a
nonsensical message that contained no pitch for drug use.

"It sounds like just a kid's provocative statement to me," Justice
David Souter said.

Students in public schools don't have the same rights as adults, but
neither do they leave their constitutional protections at the
schoolhouse gate, as the court said in a landmark speech-rights ruling
from the Vietnam era.

Morse, now a Juneau schools administrator, was at the court Monday.
Frederick, teaching and studying in China, was not.

Former independent counsel Kenneth Starr, whose Kirkland and Ellis law
firm is representing Morse for free, argued that the justices should
defer to the judgment of the principal. Morse reasonably interpreted
the banner as a pro-drug message, despite what Frederick intended,
Starr said.

School officials are perfectly within their rights to curtail student
speech that advocates drug use, he said. "The message here is, in
fact, critical," Starr said.

Starr, joined by the Bush administration, also asked the court to
adopt a broad rule that could essentially give public schools the
right to clamp down on any speech with which they disagree. That
argument did not appear to have widespread support among the justices.

Douglas Mertz of Juneau, Frederick's lawyer, struggled to keep the
focus away from drugs. "This is a case about free speech. It is not a
case about drugs," Mertz said.

Conservative groups that often are allied with the administration are
backing Frederick out of concern that a ruling for Morse would let
schools clamp down on religious expression, including speech that
might oppose homosexuality or abortion.

The outcome also could stray from the conservative-liberal split that
often characterizes controversial cases. Justice Samuel Alito, who
wrote several opinions in favor of student speech rights while a
federal appeals court judge, seemed more concerned by the
administration's broad argument in favor of schools than did his
fellow conservatives.

"I find that a very, a very disturbing argument," Alito told Justice
Department lawyer Edwin Kneedler, "because schools have ... defined
their educational mission so broadly that they can suppress all sorts
of political speech and speech expressing fundamental values of the
students, under the banner of getting rid of speech that's
inconsistent with educational missions."

Justice Stephen Breyer, in the court's liberal wing, said he was
troubled a ruling in favor of Frederick, even if he was making a joke,
would make it harder to principals to run their schools.

"We'll suddenly see people testing limits all over the place in the
high schools," Breyer said.

On the other hand, he said, a decision favorable to the schools "may
really limit people's rights on free speech. That's what I'm
struggling with."

After the arguments, two dozen sign-carrying demonstrators chanted,
"Teachers should teach, not limit free speech."

Scores of students waited outside the court early Monday for a chance
to listen to the arguments.

Ninth graders on a class trip from Mosinee, Wis., were in general
agreement on the issue. Cari Kemp, 15, said Frederick's protest was
"just a joke" but that "the school took it too far."

The justices, as they often do, sought to probe the limits of each
side's argument by altering the facts one way or another.

What if, Souter asked, a student held a small sign in a Shakespeare
class with the same message Frederick used. "If the kids look around
and they say, well, so and so has got his bong sign again," Souter
said, as laughter filled the courtroom. "They then return to Macbeth.
Does the teacher have to, does the school have to tolerate that sign
in the Shakespeare class?"

Justice Antonin Scalia, ridiculing the notion that schools should have
to tolerate speech that seems to support illegal activities, asked
about a button that says, "Smoke Pot, It's Fun."

Or, he wondered, should the court conclude that only speech in support
of violent crime can be censored. "'Extortion Is Profitable,' that's
OK?" Scalia asked.

A clear majority seemed to side with Morse on one point, that she
shouldn't have to compensate Frederick. A federal appeals court said
Morse would have to pay Frederick because she should have known her
actions violated the Constitution.

A decision is expected by July.

The case is Morse v. Frederick, 06-278.