Flaunting the First Amendment

James J. Kilpatrick
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Posted: Sep 14, 2006 12:01 AM

WASHINGTON -- A long time ago, in a place far away, a free-spirited schoolboy attempted to exercise his rights of free speech. Informed that he had none, and rudely rebuffed for his effort, the impetuous lad grew up to become a newspaperman.

Four years ago, in a different place far away, another smart-aleck also stood upon his First Amendment rights. He had better luck, and now he's in the U.S. Supreme Court, ready to defend his glorious victory against a formidable foe.

As you will have surmised, I myself was the fearless 14-year-old of 1934. Yes! Jack Kilpatrick, boy editor! He was editor of the Chief Justice, the sometime student newspaper at Taft Junior High School in Oklahoma City. I will return to his travails.

First we must attend to the fate visited upon another teenager, Joseph Frederick, in Juneau, Alaska, in January 2002. That was when the Olympic torch was being carried o'er distant lands to its final resting place beside the wine-dark sea. That was also when this courageous youth attempted, heroically, to raise a 20-foot banner with a curious text. The pennant read, mystically, cryptically, enigmatically:

BONG HITS 4 JESUS

What could it mean? Elderly spectators were in wonder. Principal Deborah Morse knew full well. In the curious argot of the underworld, it was a salute to marijuana. Yes! A celebration of pot! Of hashish! Cannabis! Young people are known to get a bhang out of it. The banner would lead the children of Juneau down a primrose path to degradation. Ms. Morse rushed across the street and snatched the evil banner from his hands. Then she trampled it underfoot!

The scene became unseemly. She ordered Joseph to her office. In defiance, he refused to come. She suspended him for five days. When he quoted Thomas Jefferson on free speech, Ms. Morse made it 10 days: He had violated her code of acceptable behavior. He appealed to Superintendent Gary Bader. No luck there. The school board also ruled that principals must be upheld.

Thwarted at every turn, young Frederick sued for money damages and a summary judgment that his rights of free speech had been invaded. U.S. District Judge John W. Sedwick sided with the principal. The wounded youth appealed. A three-judge panel of the 9th Circuit, speaking through Judge Andrew J. Kleinfeld, emphatically reversed and sent the case back for trial. From that order Ms. Morse and the Juneau board have appealed to the Supremes. We will know next month, when the high court opens its October term, if the drama will resume.

You will accurately infer that this case strikes me as much ado about mighty little. Young Frederick, suffering from an overblown view of his own importance, forgot his manners. Ms. Morse, needlessly throwing her weight around, forgot the rule that instructs grown-ups not to take themselves too damn seriously. The three judges of the 9th Circuit should have affirmed Judge Sedwick and then patted Frederick on his back for being a red-blooded American boy.

The Supreme Court may take this case for two reasons: (1) The school board's chief appellate counsel is Kenneth W. Starr, a major league player who served not long ago as a federal circuit judge and later as U.S. solicitor general. It's a reasonable assumption that Starr would not have taken the case unless he thought it had real merit. And then (2), this court is not notably sympathetic to the rights of smart-aleck kids. We'll see.

Starr may exaggerate when he says in his petition that Judge Kleinfeld's opinion in the 9th Circuit has "triggered deep concern among school boards nationwide and profoundly upset settled understandings of First Amendment principles," but he argues persuasively that the lower court erred especially in holding that Principal Morse is not entitled to qualified immunity for her role in the dreadful imbroglio. She may have outrun her writ, but not by much. She meant well.

I hope the high court takes the Juneau case and affirms 9-0. Seventy years ago, I too was a youthful rebel, a precocious baby Hearst, another Lincoln Steffens just waiting to emerge. I remember when I was summoned to the principal's office and put unpleasantly on terms: I could suspend publication of the extracurricular Weekly Keyhole and destroy all existing copies, or I could give up my editorship of the school's official student paper.

These were hard terms. My mother made me take them. I shoulda had help from the ACLU.