Students Await Free Speech Ruling

The 14-foot-long banner read "Bong Hits 4 Jesus," and its creator, Joseph Frederick, was proud. And while many in his Juneau, Alaska, community considered Frederick little more than a wise guy and a troublemaker during the event in 2002, today he's become a bona fide international activist for free speech when what was once a rivalry between him and his principal, Deborah Morse, became the Supreme Court case Frederick v. Morse as the case reached the high court.

Mary Beth Tinker, of the landmark Supreme Court free speech case Tinker v. Des Moines even showed up for today's hearing.

In Des Moines, Iowa, in 1965, Tinker -- then 13 years old -- likewise had no idea what she was getting herself into when she slid on a black armband in an expression of opposition to the war in Vietnam.

But the principal found the armband was disruptive, Tinker was suspended and the Iowa Civil Liberties Union sued the school. In 1969, Supreme Court Justice Abe Fortas wrote the majority opinion that students do not "shed their constitutional rights to freedom of expression or speech at the schoolhouse gate."

Frederick had a "lot more to say than the message that was on the banner itself," Tinker, now a pediatric nurse, told reporters today. "I've spoken with him, and I'm quite clear that he was speaking up for the right of all students for free speech."

Frederick was unavailable for comment; he's in China teaching English.

But in a conference call with reporters he called his stunt -- which took place off school property in 2002 as the Olympic torch proceeded through his Alaska town -- a "free speech experiment" that he conducted "at a time when I felt free speech was eroding in America. … The phrase 'Bong hits 4 Jesus' was never meant to have any substantive meaning, and it was certainly not intended as a drug or religious message."

With a young person's idealistic sass, Frederick recalled his conversation with his principal, with whom he had tangled over other free speech issues, including Frederick's reluctance to recite the Pledge of Allegiance.

"She suspended me for five days, and I could not believe I was being suspended for a free speech experiment," he said. After quoting Thomas Jefferson who said, 'speech limited is speech lost,' Frederick recalled, "Ms. Morse responded that 'You just earned another five days' suspension.'"

The Ghosts of Columbine

Since that landmark Tinker ruling, however, and particularly after the Columbine massacre heightened issues of bullying and the consequences of intimidating school atmospheres, school administrators have curtailed free speech in the name of student harmony. And often courts have held up those actions if the speech is disruptive, offensive or part of an official school activity such as a student newspaper.

But where should that line be drawn?

Despite their opposition to bong hits -- whether or not they're "4 Jesus" -- conservative Christian groups today sided with Frederick. They want students to be able to stand up for conservative beliefs in what they see as the overly secular and liberal world of public schools.

Their cause celebre is San Diego area high school student Tyler Chase Harper, who was suspended for wearing T-shirts festooned with anti-gay slogans that read: "I will not accept what God has condemned;" "Be ashamed, our school embraced what God has condemned;" and "Homosexuality is shameful, 'Romans 1:27.'"

Other students across the country have been suspended for wearing other shirts. In 2003, New York City middle school student Natalie Young was suspended for wearing a shirt that said "Barbie is a lesbian."

In 2003, Michigan high school student Bretton Barber got in trouble for a T-shirt featuring a picture of President Bush and the caption "International Terrorist." In 2004, Webb City, Mo., student Brad Mathewson was sent to the principal's office for wearing a T-shirt with the name of a gay-straight alliance club at his former high school and again got in trouble for wearing a T-shirt featuring a rainbow and the phrase, "I'm gay and I'm proud."

Schools have even suspended students for posting -- at home -- scathing Internet commentaries on Last year the ACLU sued the Springfield, Ohio, School Board to reinstate eighth grade student Jessica Schoch, who had created profiles that parodied a teacher and a vice principal.

Scalia: 'Smoke Pot, it's Fun'?

In court today, former independent counsel Ken Starr, representing Morse and the school in Morse v. Frederick, argued, "the rule of the Court as articulated in Tinker is that there is a right to political speech subject to … requirements that the speech not be disruptive."

"Disruptive of what?" Justice Anthony Kennedy asked, noting that students had left campus to watch the torch procession. "There was no classroom here."

"The educational mission of the school," Starr said. He argued that the message of the banner was inarguably pro-pot, a message schools should have deference in censoring.

"It's political speech, it seems to me," Justice David Souter said in disagreement.

"One could look at these words and say it's just nonsense, or one could say it's like 'mares-eat-oats,'" said Justice Ruth Bader Ginsburg, who just turned 74 last week. "It isn't clear that this is 'smoke pot.'"

But ACLU attorney Douglas Mertz, representing Frederick, found himself fending off tough questions from Justice Antonin Scalia. "The school has … an anti-drug program that shows movies, it brings in policemen and social workers to preach against drug use and you're saying that it … has to let students contradict this message it's trying to teach? To walk around, you know, with a button that says, 'Smoke pot, it's fun'?"

"A nondisruptive pin, badge, whatever you want to call it, would have to be tolerated," Mertz said. "However, they would not have to tolerate a student who interrupts an anti-drug presentation."

Asked Kennedy, "Can the student be allowed to wear a button that says 'Rape is fun'?"

Mertz said no because, "when you're talking about hate speech, speech that advocates violence, then you're in another category of speech."

Justice Stephen Breyer said if the court ruled for Frederick, "we'll suddenly see people testing limits all over the place in high schools." But a ruling for the school "may really limit people's rights on free speech," he said. Breyer said he was worried about ruling for either side.