All agree that Frederick was a rabble-rouser. The school had previously called police when he refused to leave a common area. The next day, he was disciplined after he remained seated during the Pledge of Allegiance.
"I never professed to be a saint," Frederick, now 23 and teaching English in China, told reporters at an ACLU teleconference.
The ACLU claims Frederick was acting independently of the school, and at least one of his cohorts was a nonstudent. And, say his lawyers, even if his message was construed as pro-marijuana, that issue had been a subject of legitimate political debate in Alaska for years.
The case was first heard in federal district court, which relied on the 1988 ruling in Hazelwood v. Kulhmeier to uphold the school's position that it had a right to censor expression if the decision was "reasonably related to legitimate pedagogical concerns."
But the 9th Circuit Appellate Court fell back on the 1969 Tinker ruling that forbade schools from punishing speech with which they disagreed. The Court also held Morse personally liable for her actions.
Morse's brief argues the ruling undermines "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."
"We think it's a draconian and punitive measure," said Francisco Negron, lawyer for the National Association of School Boards. "They are holding Morse responsible for professional duties when she was acting to uphold the educational mission of the school."
The legal team will also ask the Court to review its interpretation of school sponsorship in light of the Internet.
"In this era of instant communication, it's quite a challenge for principals to maintain sufficient order and safety to do what they do -- teach," said Negron.
Steve R. Shapiro, legal director at the ACLU, argued Frederick's protest was not at school and is therefore not a case of student free speech. To call it so would "change the architecture for student law," he said.
"They didn't like what he said, and the thought he wanted to convey, and it was censored," said Shapiro. "That would permit schools to censor student speech whenever they chose to and completely unravel the Court's understanding of the last 40 years."
Last year, the Student Press Law Center in Arlington, Va., fielded 1,260 calls for legal advice from high school newspapers, according to Executive Director Mark Goodman.
One call came in January, from student editor Eric Sheforgen, whose St. Francis, Minn., high school principal objected to the publication of a theater department photo of a student tearing up tablecloth bunting that looked like a flag.
Fearing it would anger veterans, the school froze the newspaper's funds and threatened legal action. Students countered with this replacement: "Originally, a photo was to be placed here but was censored by the administration."
"It's not at all democratic or American to silence the voice of students who will become leaders," said Sheforgen, who said students had been responsible for the St. Francis High School Crier editorial content for 30 years.
The principal has invoked the more restrictive Hazelwood ruling, insisting that Sheforgen remove the paper's editorial guidelines, declaring it is "an open forum for student expression."
In a standoff between the editor and principal, the Crier has not published in two months.