James J. Kilpatrick

It's a puzzlement. The Supreme Court agreed a few days ago to hear a case from Alaska that didn't deserve its attention. The case stems from the punishment imposed upon a high school student for publicly unfurling a 20-foot banner that read: BONG HITS 4 JESUS.

What in the name of the First Amendment is going on here? The facts are not seriously in dispute: On Jan. 24, 2002, the Olympic torch was to be carried through the streets of Juneau on its way to Athens. The parade would pass by the Juneau-Douglas High School. Students were given time off to watch from the sidewalk.

At the climactic moment, young Joseph Frederick and his co-conspirators leaped to their feet from across the street. They had scarcely elevated their banner with its strange device before the high school principal, Deborah Morse, rushed into action. She lost her cool, tore down the banner, ordered Frederick to report to her office, and eventually suspended him for 10 days for publicly advocating the use of illegal drugs.

Naturally the lad sued for violation of his civil liberties. It's the American way. He lost at the trial level but won a resounding victory last March in the 9th Circuit. Judge Andrew J. Kleinfeld spoke for a three-judge panel of the court. The law on student speech, he said, "is so clear and well-settled that no reasonable government official could have believed the censorship and punishment of Frederick's speech to be lawful."

In this narrow field of First Amendment law, the chain of precedent goes back to the Tinker case of 1969. Three students in a public school in Des Moines wore black arm bands to signal their disapproval of the war in Vietnam. In a resounding 7-2 division, the Supreme Court upheld their right of free speech. Subsequent cases, involving a variety of student speech on school premises, have created an area of constitutional law of remarkable clarity.

Unlike these precedents, the pending case from Alaska offers not a single issue worthy of review in the high court. The "speech" at issue (1) was not on school premises, (2) did not disrupt a school function, (3) did not involve students wearing T-shirts with a scatological message, and (4) had nothing to do with school-sponsored publications. Young Frederick was not even cutting a class. He was doing what comes naturally to high-spirited teen-agers. I should know: Once upon a time I was one.


James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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