WASHINGTON -- In January 2002, in Juneau, Alaska, Joseph Frederick had the sort of idea that makes a teenager seem like one of nature's mistakes. Last week, after five years and the attention of 13 federal judges, Frederick became a footnote in constitutional history.
His case illustrated how the multiplication and extension of rights lead to the proliferation of litigation. It also illustrated something agreeable in a disagreeably angry era -- how nine intelligent, conscientious justices can civilly come to strikingly different conclusions about undisputed facts.
This story actually began in 1965, in Des Moines, Iowa, when three teenagers wore to school black armbands to protest the Vietnam War. Their school said the bands or the students must go. The students kept the bands, were suspended, sued and won a 7-2 Supreme Court victory in 1969. The court said that students do not ``shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'' One of the dissenting justices was Hugo Black, a fierce proponent of First Amendment rights who nevertheless warned that the decision denied schools ``the power to control pupils.''
Thirty-three years later, at a school-sanctioned and faculty-supervised event during normal school hours, students were watching the Olympic torch pass through Juneau en route to the 2002 Winter Olympics in Utah. Frederick and some friends, standing on a public street across from their school, unfurled a banner reading ``Bong Hits 4 Jesus.'' The school's principal read that as endorsement of, even advocacy of, an illegal act (marijuana use) in violation of the school's stated policy and educational mission. She ordered Frederick and his friends to take the banner down. Frederick refused and was suspended from school for 10 days.
He sued, claiming his First Amendment free speech rights were violated. A district court ruled against him, but a three-judge panel of the 9th U.S. Circuit Court of Appeals -- the court most often reversed by today's Supreme Court -- sided with him unanimously.
Although accepting that the banner was at a school event and endorsed drug use, the panel held that Frederick's rights had been violated because there was no finding that his speech threatened a substantial disruption of the school. Last week, the Supreme Court disagreed, 5-4.