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High court hears 'Bong hits 4 Jesus' case

By Bill Mears
CNN Washington Bureau

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WASHINGTON (CNN) -- The Supreme Court Monday debated the case of a high school principal who suspended a student over a "Bong Hits 4 Jesus," banner displayed at a school-sponsored event.

The free-speech case tests the limits of student messages officials could try to suppress.

Joseph Frederick, then 18, unveiled the 14-foot paper sign on a public sidewalk outside his Juneau, Alaska, high school. Principal Deborah Morse confiscated it and later suspended the young man.

At issue was whether Frederick's free-speech rights were violated and the discretion schools should be allowed to limit messages that appear to advocate illegal drug use. (Watch why "bong hits" are on the court's plate )

"Bong," as noted in the appeal filed with the justices, "is a slang term for drug paraphernalia."

"It was completely disruptive of the message, of the theme that the school wanted to promote," said Justice Anthony Kennedy, in support of the school.

Justice David Souter expressed some concern. "It's political speech, it seems to me," he said. "I don't see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school."

The incident occurred in January 2002 just outside school grounds when the Olympic torch relay was moving through the Alaska capital on its way to the Salt Lake City, Utah, Winter Games.

Though he was standing on a public sidewalk, the school argues Frederick was part of a school-sanctioned event, because students were let out of classes and accompanied by their teachers.

Morse ordered the senior to take down the sign, but he refused. That led to a 10-day suspension for violating a school policy on promoting illegal drug use.

Frederick filed suit, saying his First Amendment rights were infringed. A federal appeals court in San Francisco agreed, concluding the school could not show Frederick had disrupted the school's educational mission by showing a banner off campus.

Former independent counsel Kenneth Starr argued for the principal that a school "must be able to fashion its educational mission" without undue hindsight from the courts.

That brought swift skepticism from some justices.

"There was no classroom here," said Kennedy.

"This was education outside a classroom," replied Starr of the torch relay observation.

"What did it disrupt on the sidewalk?" asked Souter of Frederick's banner.

"The educational mission of the school," was Starr's answer.

"The school can make any rule that it wants on any subject restrictive of speech, and if anyone violates it, it's disruptive?" asked Souter.

Justice Samuel Alito, alone among his conservative bench mates, appeared sharply critical of the school's position

"I find that a very, very disturbing argument," he said, "because schools have and they can define 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."

Several on the bench tried to test the limits of what kinds of speech the schools could control. Many were clearly grasping at a proper balance.

Justice John Roberts wondered whether a button that said "Legalize Marijuana" would be political speech.

Souter asked about whether a "substantial disruption" would exist if a student flashed a small sign in class saying "Bong Hits 4 Jesus."

What about a button that advocated rape, asked Kennedy.

Or a button that read "Extortion is profitable" said Justice Antonin Scalia.

"Suppose that this particular person had whispered to his next door neighbor, 'Bong Hits 4 Jesus, heh heh heh,' " speculated Justice Stephen Breyer.

Justice Ruth Bader Ginsburg suggested Frederick's banner was ambiguous enough not to support claims he was promoting illegal drug use. "One can look at these words and say it's just nonsense," she said. "It isn't clear that this is 'Smoke Pot.' "

Souter called it "just a kid's provocative statement."

Frederick's lawyer, Douglas Mertz of the Alaska ACLU, received equally tough questions from most of the justices when he suggested the case was "about free speech."

"It's a case about money," said Roberts of Frederick's lawsuit against his former principal.

Kennedy asked Mertz whether his client "would waive damages against this principal who has devoted her life to the school, and you're seeking damages for her for this sophomoric sign that was held up?"

Schools can limit student speech

While the Supreme Court has said students do not give up all their First Amendment rights when they enter the classroom setting, they have ruled schools have the power to limit their speech.

Starr, who is representing the school free on behalf of his Los Angeles law firm, urged the high court to clear up the "doctrinal fog infecting student speech jurisprudence."

Morse, who attended Monday's court session, is hoping for closure.

"I was empowered to enforce the school board's written policies at that time aimed at keeping illegal substances out of the school environment," she said afterward. "As a consequence, that day in fulfilling my duties I found myself a defendant in a lawsuit that's gone on for over five years. I'm hopeful that the court's decision will give administrators better guidance and clarity on their roles."

Frederick is teaching English to students in China and did not attend the oral arguments. The 24-year-old told reporters two weeks ago that he displayed the banner in a deliberate attempt to provoke a response from principal Morse.

"I find it absurdly funny," he said. "I was not promoting drugs. ... I assumed most people would take it as a joke."

A ruling is expected by late June.

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