Every group in power has its fervent rationale for believing that it has a right, even a duty, to suppress speech it doesn't like. That's why America has a Supreme Court -- to slap some sense into the censorious.
Yesterday, lawyers argued a case that should have been settled years ago. It began in January 2002. As an Alaska high school released students so that they could attend a "Winter Olympics Torch Relay," then-18-year-old senior Joseph Frederick unfurled a banner that read, "Bong Hits 4 Jesus," from a Juneau sidewalk. Frederick thought the nonsensical message would get him on TV.
And it did -- Frederick's name was broadcast across America last night.
Thank his high school principal, Deborah Morse. Morse saw the banner, crossed the street and tore it up. She also suspended Frederick for 10 days. Frederick appealed to the school board and lost. He went to court, where a federal judge ruled against him. But in 2006, the Ninth Circuit U.S. Court of Appeals ruled 3-0 for Frederick. Now the case is before the Big Bench.
Leaders of the religious right, who want to protect the free speech rights of religious students, have joined with drug-war dissidents, like the group Students for Sensible Drug Policy, whose members protested outside the Supreme Court building. Eric Sterling, an SSDP board member, told me this is not the first time he has been involved in "strange bedfellow" coalitions in which one group sees "the infringement of the civil liberties" of a group as likely to affect all.
On the school board's side stand the Bush administration and former special prosecutor Ken Starr, who has come up with a scary argument in support of Frederick's suspension. Starr told the justices that schools should be able to silence students if their speech disrupts "the educational mission of the school." Follow the logic. Juneau schools tell kids to stay away from drugs. If students argue -- or even joke -- they are being, in Starr's words, "disruptive."
The Ninth Circuit understood how this precedent could be used to punish free-thinking teens. Judge Andrew Kleinfeld wrote, "All sorts of missions are undermined by legitimate and protected speech -- a school's anti-gun mission would be undermined by a student passing around copies of John R. Lott's book, 'More Guns, Less Crime'; a school's anti-alcohol mission would be undermined by a student e-mailing links to a medical study showing less heart disease among moderate drinkers than teetotalers."
Sterling predicted that the Supremes will "both uphold and reverse" the Ninth Circuit ruling, by agreeing that the suspension was a violation of Frederick's rights, but reversing the finding that Morse could be held personally liable for damages. The Big Bench must not walk away from a 1969 ruling that upheld students' rights to wear black armbands to protest the Vietnam War, noting, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
David Crosby, an attorney who represented Juneau schools early on, complained to the Anchorage Daily News that the "carefully manipulated image of Joe Frederick as a latter-day Thoreau" is "offensive and ludicrous."
Crosby has a point. Frederick won't even admit that "Bong Hits 4 Jesus" was a pro-marijuana message. Also, as the Anchorage Daily News reported, Frederick pleaded guilty to misdemeanor sale of marijuana in 2004. But if anyone has made Frederick into a civil-disobedience hero, it is Morse, who went overboard punishing a smart-aleck kid.
At first, she suspended Frederick for five days. Then, she upped it to 10 days -- she says, because he would not name his accomplices; he says, because he quoted Thomas Jefferson on free speech.
She could have tried to reason with the kid. Or she could have used adults' most potent weapon -- ignoring him. Instead, Morse gave the smart mouth the grounds to turn a prank into a federal case.