Law & Courts

Supreme Court Weighs ‘Bong Hits’ Speech Case

By Andrew Trotter — March 19, 2007 5 min read
Jay Hartman, left, a University of Maryland student, and Alicia Cook, a high school senior from Bethesda, Md., rally in support of student free speech outside the U.S. Supreme Court on March 19.

The U.S. Supreme Court appeared sharply divided today on whether a high school student’s banner proclaiming “Bong Hits 4 Jesus” outside an Alaska high school was protected speech or a message that school authorities could suppress because it ran counter to their policies against the promotion of illegal drugs.

Justice Stephen G. Breyer seemed to capture the court’s concerns as the justices heard arguments in Morse v. Frederick (Case No. 06-278).

“It’s pretty hard to run a school where kids go around at public events publicly making a joke out of drugs,” Justice Breyer told Douglas K. Mertz, the lawyer representing former high school student Joseph Frederick, who was suspended for 10 days in 2002 stemming from the incident.

Justice Breyer said he worried that if he took the student’s side, “we’ll suddenly see people testing limits all over the place in the high schools. But a rule that’s against your side may really limit people’s rights on free speech. That’s what I’m struggling with.”

Kenneth W. Starr, the lawyer representing Deborah Morse, who was the principal of Juneau-Douglas High School at the time of the incident, argued that Mr. Frederick’s 14-foot banner was an assault on the district’s anti-drug policies.

“Illegal drugs and the glorification of drug culture are profoundly serious problems for our nation,” Mr. Starr told the justices during arguments in the case on March 19.

But when Justice Anthony M. Kennedy asked him whether the case was “limited to signs about drugs,” Mr. Starr replied that the case of the Juneau district was based on the Supreme Court’s famous 1969 precedent in Tinker v. Des Moines Independent Community School District. That decision, upholding secondary school students who wore black armbands to protest the Vietnam War, also informed school districts that they were justified in disciplining students for speech that is disruptive, Mr. Starr argued.

Several justices wanted to know just what about the banner was disruptive to school, since it was displayed outside of the school building at an event to celebrate the carrying of the Olympic torch, attended by the general public, at which several students were throwing snowballs.

Mr. Starr replied that it disrupted the school’s educational mission.

Justice David H. Souter, who was the most aggressively pro-free-speech in his questioning, replied: “Then if that’s the rule, the school can make any rule … on any subject restrictive of speech, and if anyone violates it, the result is, on your reasoning, it’s disruptive under Tinker.”

Mr. Starr said the school board is given “considerable discretion both in identifying the educational mission and to prevent disruption of that mission, and this is disruptive of the mission.”

Representing the Bush administration on the side of the Juneau school district, Deputy U.S. Solicitor General Edwin S. Kneedler said the case was akin to Hazelwood v. Kuhlmeier, another landmark student-speech case, in which the high court reined in Tinker by clarifying the authority of the school over speech that could be construed as school-sponsored.

Under that ruling, Mr. Kneedler said, “a school does not have to tolerate a message that is inconsistent with its basic educational” mission.

“I find that a very, very disturbing argument,” said Justice Samuel A. Alito Jr., because under such an interpretation, schools “can define their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with their educational mission.”

Mr. Kneedler replied that the justices would be sensible to articulate a result that would discourage illegal conduct.

Mr. Mertz, the Juneau, Alaska, lawyer representing Mr. Frederick, sought to recast the case as “about free speech. It is not a case about drugs.”

Several justices lined up to attack Mr. Mertz’s contention, though, based on Tinker, that what is important is not the content of the student’s speech, but, as he put it, “whether there is a substantial disruption of what the school is trying to achieve legitimately, whether it’s a classroom lesson or a lesson on drug use.”

Mr. Mertz said, for example, that the wearing a “nondisruptive pin” by a student would have to be tolerated. However, he said, authorities would not have to tolerate a student’s interruption of an anti-drug presentation.

Justice Antonin Scalia didn’t buy his reasoning, noting that under Mr. Mertz’s argument, “the school, even though it is trying to teach one point of view, can allow students to come in and undermine that point of view.”

Justice Kennedy jumped in, “Can the student be allowed to wear a button that says, ‘Rape is fun’?”

Mr. Mertz said no, because “hate speech, speech that advocates violence, then you’re in another category of speech.”

“Nonviolent crimes are OK; it’s only the violent crimes that you can’t promote, right? Right?” challenged Justice Scalia. “This is a very, very—with all respect—ridiculous line.”

Qualified-Immunity Issue

The one issue on which the justices seemed to be in agreement was that Ms. Morse, the principal of Juneau-Douglas High in 2002, deserved immunity from personal liability in the lawsuit that Mr. Frederick filed against her.

Chief Justice John G. Roberts Jr. had told Mr. Mertz that in addition to free speech, the case appeared to be about money.

“Your client wants money from the principal personally for her actions in this case,” the chief justice said.

Mr. Mertz acknowledged that Mr. Frederick had asked for money damages in the case. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had upheld that claim by holding that Ms. Morse was not immune from the lawsuit because the violation of the student’s rights was so clear. No amount for Ms. Morse’s damages has been set.

The student was “certainly willing to negotiate a minimum settlement,” said Mr. Mertz.

“But there’s a broader issue of whether principals and teachers around the country have to fear that they’re going to have to pay out of their personal pocket, whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission,” Chief Justice Roberts said.

Even Justice Souter, who appeared sympathetic to Mr. Frederick on the core free-speech question, seemed to suggest that Ms. Morse could not have been expected to know that she was violating Mr. Frederick’s clearly established rights when she disciplined him for a banner that she interpreted as violating the school’s policies against promoting illegal drugs.

“We’ve been debating this in this courtroom for going on an hour, and it seems to me, however you come out, there is reasonable debate,” Justice Souter said to Mr. Mertz. Should the principal have known, “even in the calm deliberative atmosphere of the school later, what the correct answer is?”

The court is expected to issue a decision by the end of its term in late June.

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