WASHINGTON (ABP) — The Supreme Court just isn't down with “Bong Hits 4 Jesus,” man. But an unusual coalition of conservative religious and civil-liberty groups aren't down with the court's majority in a June 25 decision on the free-speech rights of students in public schools.
In the 5-3 Morse v. Frederick decision — with a ninth justice splitting his vote on different aspects of the case — the high court ruled in favor of an Alaska school district. The case concerned a banner that seemed to promote drug use and definitely encouraged more than a few attempts at journalistic humor.
But school officials' suppresion of the banner's speech also concerned the American Civil Liberties Union, the Christian Legal Society and other groups. They feared the decision threatens students' free-speech rights by allowing schools to censor any message they deem to be at odds with school-district policies.
Some conservative Christians worry that approach could lead to censorship of students opposed to homosexuality, for instance.
The case stemmed from a 2002 prank by an 18-year-old senior at Juneau-Douglas High School in Juneau, Alaska. During a parade celebrating the 2002 Salt Lake City Winter Olympics, Joseph Frederick and his friends held a 14-foot-long banner on a public sidewalk across the street from the school. Its message read “Bong Hits 4 Jesus.” A bong is a water pipe sometimes used to smoke marijuana.
Frederick said he had seen the phrase elsewhere and chose it simply as an absurdist, nonsensical way to celebrate his free speech — and attract attention from the many news cameras covering the event.
Upon seeing the banner, which she took as an endorsement of drug use, school principal Deborah Morse walked over to Frederick and ordered him to take it down. When he refused, she tore the sign down herself.
Frederick sued Morse and the Juneau School Board, and he won in lower federal courts. The losing parties appealed the case to the Supreme Court, and the Bush administration joined their side.
The breadth of the arguments on Morse's side ended up alarming the advocacy groups, which then filed friend-of-the-court briefs on Frederick's behalf.
Attorneys for both the school board and President Bush's administration argued that school officials could suppress any student message “inconsistent with the school's basic educational mission.” Anti-drug groups filed friend-of-the-court briefs in favor of that view.
But agreeing with such a view would compel the court to make an exception to its landmark 1969 Tinker v. Des Moines School District ruling. In that decision, the majority ruled the school could not prevent students from wearing black armbands to class to protest the Vietnam War. The court's majority said, famously: “[I]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In the years since Tinker, the court has made narrow exceptions to the rule in cases where students engaged in disruptive or vulgar speech or where the school could be seen as directly endorsing the speech through its support of a student publication like a campus newspaper.
But the Juneau School Board's argument, echoed by the government, would allow suppression of student speech beyond previous cases. School officials' right to censor speech could extend to any student speech that, though neither disruptive nor subsidized by the school, proved to be at odds with school-district policies.
Conservative Christian groups were concerned that school boards with policies against anti-gay harassment, for instance, could end up suppressing conservative students' free speech in opposition to homosexuality.
On the June 25 decision, the Supreme Court attempted to allay such fears by saying the exception to the Tinker decision concerned only speech that promotes drug use.
“The opinion of the court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public-school officials to censor any student speech that interferes with a school's 'educational mission,'” wrote Justice Samuel Alito, in a concurring opinion in which Justice Anthony Kennedy joined. “This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.”
But Justice John Paul Stevens, writing for the minority, said “the First Amendment demands more, much more,” and that the decision would prove dangerous.
“In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students,” Stevens wrote. “This nonsense banner does neither, and the court does serious violence to the First Amendment in upholding — indeed, lauding — a school's decision to punish Frederick for expressing a view with which it disagreed.”
Justices Ruth Bader Ginsburg and David Souter joined Stevens in the minority. Meanwhile, Chief Justice John Roberts and justices Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Alito in the majority.
Justice Stephen Breyer concurred with reversing the lower court's decision in Frederick's favor, but said he would have preferred not to reach as far as the free-speech issue, instead dismissing the lawsuit based merely on the fact that Morse, as a public official performing her duties in good faith, was immune from it.
The case is No. 06-278.
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Read more:
Supreme Court decision in Morse v. Frederick
Christians, ACLU join forces in favor of 'Bong Hits 4 Jesus'