"BONG" BANNER FREE-SPEECH DISPUTE TO HIT SUPREME COURT TOMORROW

WASHINGTON -- The most important student free-speech conflict to
reach the Supreme Court since the height of the Vietnam War hinges on
a somewhat absurd, vaguely offensive, mostly nonsensical message of
protest: "Bong Hits 4 Jesus."

That's the slogan high-school student Joseph Frederick fashioned in
2002 with a 14-foot piece of paper and a $3 roll of duct tape. His
goal was partly to get on TV as the Olympic torch passed through his
town of Juneau, Alaska, and mostly to get under the skin of his
disciplinarian principal, Deborah Morse, with whom he had a running feud.

It worked, at least the irritating-the-principal part. Morse crossed
to Frederick's position across from the school and confiscated the
banner and later suspended him for 10 days. Frederick said Morse
tacked on the last five days when he paraphrased Thomas Jefferson's
admonition that "speech limited is speech lost."

In the five years since, a classic conflict between a second-semester
senior and his frazzled principal has spawned numerous lawsuits and
conflicting court rulings.

A wide range of interested parties has assembled for what some see as
an epic Supreme Court battle that will be heard Monday.

The American Civil Liberties Union (ACLU) has been on Frederick's
side from the start, joined by a diverse coalition of civil-rights,
constitutional-law and religious organizations.

Kenneth Starr, the former special prosecutor of President Clinton,
has volunteered his time to the Juneau School District, and school
boards across the country, plus the Bush administration, are
supporting Morse and the school district.

Morse v. Frederick asks the justices to weigh the court's famous 1969
ruling that students "do not shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate" with more
recent decisions acknowledging a school system's ability to enact
rules that maintain order and protect other students from messages
deemed harmful.

In this case, the school board maintains that Frederick's slogan
encourages smoking marijuana. Other school districts have placed
restrictions on clothes or speech believed to carry the potential of
disruption or violence.

Both sides equate an adverse ruling with cataclysmic results.

The "extraordinarily broad claim" asserted by the government, said
ACLU national legal director Steven Shapiro, "would in effect
overrule the entire architecture of student-speech law that the
Supreme Court has so carefully constructed over the past 40 years."

Morse's brief, written by Starr and a team of pro bono attorneys at
the law firm of Kirkland and Ellis, said ratification of Frederick's
victory in the appellate court would make all the more daunting "the
vital task of teachers, administrators and volunteer school-board
members in attending holistically to the needs of millions of
students entrusted every school day to their charge."

Frederick was one of them, five years ago, though he was not a
particularly happy student at Juneau-Douglas High School.

One day, he refused a vice principal's order to leave a student
commons area where he was reading Albert Camus, and police were
called. The next day, he remained in his seat while others stood for
the Pledge of Allegiance and he was hauled to the principal's office.

He planned his ultimate protest for Jan. 24, 2002, the day the
Olympic Torch was scheduled to pass through Juneau, part of a
50-state relay in advance of the winter Olympics in Salt Lake City.
Frederick said he'd seen the phrase "Bong Hits For Jesus" on a
sticker on a snowboard.

"To me, it's absurdly funny," Frederick, now 23, said in a recent
conference call with reporters. "The phrase was not important. I
wasn't trying to say anything about religion, I wasn't trying to say
anything about drugs, I was just trying to say something. I wanted to
use my right to free speech, and I did it."

Frederick's case presents some unusual facts. For one thing, he was
18 at the time of the event, and he was careful not to display his
protest message on school grounds.

At least one nonstudent was among the group holding the banner and
his lawyers contend that even if his message was considered
pro-marijuana, debates about legalizing the drug are a legitimate
topic of political discussion in Alaska, where the state Supreme
Court has ruled adults have the right to possess small amounts of pot.

Even school officials acknowledged Frederick's actions were not
disruptive. But the school board says Frederick's protest came at
what was a school-sponsored event: the high school was released for
the parade, and the cheerleaders and pep band entertained. "It was a
field trip," Starr says, even if it occurred outside the school.

A district court judge dismissed Frederick's suit against Morse and
the school board that backed her decision. But the U.S. Court of
Appeals for the 9th Circuit said government officials cannot punish
speech with which they disagree.

That court held Morse personally liable for violating Frederick's rights.

Morse is now an administrator with the Juneau School District.
Frederick, meanwhile, has learned much about the legal system. He
sued the Juneau police for a series of what he alleged were
harassments that occurred after the banner incident, and he received
a settlement from the city. As fate would have it, his father Frank
worked for the company that insured the Juneau School District; he
sued after he claimed he was fired for not pressuring his son to drop
his lawsuit. A jury awarded him a nearly $200,000 settlement.

Joseph Frederick also was arrested as a Texas college student for
distributing marijuana. "I never professed to be perfect or a saint,"
he said in the conference call.

[sidebar]

DEFINING FREE SPEECH

Free-speech rights of students and the limits school administrators
may impose on them are defined in three cases:

Tinker v. Des Moines (Iowa) Independent Community School District
(1969): Court held that students had a First Amendment right to
protest the Vietnam War by wearing black armbands in class. "It can
hardly be argued that either students or teachers shed their
constitutional rights of freedom of speech or expression at the
schoolhouse gate," the majority opinion said.

Bethel (Wash.) School District v. Fraser (1986): The court said a
student had no First Amendment right to give a "plainly offensive,"
sexually charged speech at a school assembly. The court said schools
had a right to limit speech that would disrupt the educational
mission of the school.

Hazelwood School District v. Kuhlmeier (1988): Students don't have
the right to publish stories, in this case on divorce and pregnancy,
in a school-sponsored newspaper over the principal's objection. Such
speech, the justices ruled, could be perceived as carrying the
official sanction of school officials.