'Bong' Case Limits Student Speech
Tuesday, June 26, 2007
The U.S. Supreme Court tightened limits on student speech Monday, allowing schools to punish youths for statements that might promote drug use -- a ruling that gives new prominence to laws in California and a handful of other states that provide protections for expression on campus.
The 5-3 decision came on a day when the court's conservative majority flexed its muscles with rulings that favored corporate and union political donors, developers and the Bush administration's efforts to steer federal money for social services to religious groups. The final rulings of the 2006-2007 term, including one on whether school districts can consider students' race in integration plans, are scheduled to be released Thursday.
The student speech case involved an Alaska high school senior who raised a banner reading, "Bong Hits 4 Jesus," at a school-sanctioned event outside campus. The school principal seized the banner and suspended the student for 10 days.
The court said that although the message was "cryptic," the principal had reasonably interpreted it as promoting the use of bongs -- marijuana water pipes -- and that such a statement by a student was not covered by the Constitution's free speech guarantee.
"Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," Chief Justice John Roberts said in the majority opinion.
He said the court was not retreating from free speech principles it established in a 1969 case of students who wore black armbands in a silent protest against the Vietnam War. In that ruling, the justices said schools must allow free expression unless it disrupts education.
The court has narrowed that principle in subsequent cases, ruling in 1986 that schools could prohibit sexually suggestive speech and in 1988 that they could censor student newspapers.
Dissenters from Monday's ruling said the latest case was a further erosion of students' free speech rights.
"The court's ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high school students, about the wisdom of the war on drugs," Justice John Paul Stevens wrote.
While arguing that the court shouldn't have accepted the principal's "strained reading" of the bong banner, Stevens said the ruling would also allow school administrators to punish a student for speech that directly challenged drug laws. That, he said, would be contrary to the spirit of the 1969 decision.
The ruling is likely to have little effect in California, one of about a half-dozen states with laws that specifically protect student expression. A 1983 California statute entitles public school students to freedom of speech and of the press unless what they say is obscene or libelous, or unless it creates a "clear and present danger" of lawbreaking or disorder on campus.
A state appeals court in San Francisco relied on that law last month in ruling against officials of Novato High School who confiscated a student newspaper in 2001 because of an editorial saying any Latino who couldn't speak English was probably an illegal immigrant.
"The whole purpose (of the state law) is to provide greater protection than the First Amendment in the public schools," said Peter Scheer, executive director of the California First Amendment Coalition, a media advocacy organization. "Students, particularly in the higher grades, ought to enjoy essentially the same freedom of speech that their parents enjoy."
Michael Smith, an attorney in Fresno who represented the National School Boards Association in the Supreme Court case, called Monday's ruling "a victory for schools across the nation" but agreed that in California, "it is entirely possible that the student's speech would be protected."
The Alaska student, Joseph Frederick, unfurled a 14-foot "Bong Hits 4 Jesus" banner in January 2002 while a torch relay for the Winter Olympics was passing by Juneau-Douglas High School and students were being let out of class to watch it.
The principal, Deborah Morse, crossed the street and demanded that Frederick and his friends take the banner down. When Frederick refused, Morse grabbed the sign and crumpled it.
Frederick said "Bong Hits 4 Jesus" was a nonsense message and that his only goal had been to get on television. But Morse suspended him for 10 days for promoting drug use contrary to school policy.
Frederick, now 24, sought damages and an order removing the suspension from his record. His lawyer, Douglas Mertz, said he still has a case under Alaska law.
Legal commentators said Monday's ruling appeared to be narrowly written but reflected the court's gradual narrowing of free speech in schools since the Vietnam War armband case.
Although the ruling is limited to drug-related speech, it shows that the court is no longer "putting a strong thumb on the First Amendment scale (in favor of) students," said Jesse Choper, a UC Berkeley law professor.
USC law Professor David Cruz, an American Civil Liberties Union board member, said the court was allowing a student to be punished for a statement that "could be seen as celebrating" marijuana use but not necessarily advocating it.
At the same time, he noted, two members of the majority, Justices Samuel Alito and Anthony Kennedy, said in a separate opinion that they would go along with punishing advocacy of illegal drug use but would oppose discipline for a student's political commentary on drugs or other subjects.
Another justice in the majority, Clarence Thomas, wrote that the court should overrule its 1969 decision, deny free speech protections for students and return to the days when "teachers commanded and students obeyed."
Justice Antonin Scalia provided the fifth vote for the majority.
Stevens' dissent was joined by Justices David Souter and Ruth Bader Ginsburg.
The ninth justice, Stephen Breyer, said the court should have sidestepped the constitutional issue and ruled only that the principal had violated no clearly established rights and could not be sued for damages.
The case is Morse vs. Frederick, 06-278.
Copyright San Francisco Chronicle.
In accordance with Title 17 U.S.C. Section 107 and The Berne Convention on Literary and Artistic Works, Article 10, news clippings are made available without profit for research and educational purposes.
A hotbed of cannabis activism, Washington State is home to many organizations working to bring about rational drug policy. Here are some things to get involved with:
Cannabis Defense Coalition has been very active lately. They focus on courtroom observation and medical marijuana activism.
The November Coalition, based in Colville, is a national reform group and works with prisoners and families.
SpoCannabis is a medical marijuana activist group in Spokane.
King Co. Bar Association Drug Policy Project has done amazing work educating the "suits" about the failure of our prohibition model of drug policy, and the need for a regulatory model of drug policy.
Seattle Hempfest is the third weekend in August on Seattle's waterfront.
Olympia Hempfest is a week after Seattle's big bash.