Supreme Court hears oral arguments in "Bong Hits 4 Jesus" case
The U.S. Supreme Court has heard oral arguments in the student speech case of Morse v. Frederick, Docket No. 06-278, popularly known as the "Bong Hits 4 Jesus" case. The case involves whether Juneau high school principal Deborah Morse and the school board violated Joseph Frederick’s free-speech rights by punishing him for displaying those words on a 14-foot-long banner across the street from school as the 2002 Olympic torch parade went by. Former solicitor general Kenneth Starr’s argument that school officials should be given deference when restricting student speech to advance a school's educational mission—especially, though not exclusively, when that mission is fighting illegal drugs—seemed to win over Chief Justice John Roberts. Justice Samuel Alito, on the other hand, described Mr. Starr’s argument as "very, very disturbing … because schools have ... defined 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 educational missions." Justice Alito's reference to fundamental values may be a nod to the arguments that Christian legal organizations have made, perhaps unexpectedly, in support of the student’s right to display the bong banner.
Much of argument time was consumed over disputed facts of the case, which could lead to remanding the case to lower courts for further fact-finding. Several justices wondered why Ms. Morse viewed the banner as a pro-drug message at all. And it was noted that Joseph displayed the banner not on school property but across the street. Joseph insists he had no drug message in mind. Justice David Souter seemed most sympathetic toward student expression, repeatedly asking Mr. Starr what was disruptive about the banner, especially in an off-campus, non-classroom setting. Justice Anthony Kennedy, like Justice Alito, expressed concern about giving too much power to school officials. "Suppose you have a mission to have a global school. Can they ban American flags on lapels?" Mr. Starr responded that flags could not be banned, and then reiterated his core argument that "this case is ultimately about drugs and other illegal substances." He invited the Court to rule narrowly and fashion a rule that focuses on pro-drug speech.
Joseph’s attorney, Douglas Mertz countered, "This is a case about free speech. It is not a case about drugs." But Chief Justice Roberts interjected, "It's a case about money. Your client wants money from the principal personally." Joseph is in fact seeking money damages for the constitutional violation, but "that’s by no means his object here," Mr. Mertz said. He emphasized the banner was displayed on a public sidewalk at a public event, not a school assembly. Justice Kennedy took issue with Mr. Mertz’s characterization of the display as not being disruptive. "It was completely disruptive of the message, of the theme that the school wanted to promote," he said, adding: "Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school’s image that they wanted to portray in sponsoring the Olympics." Chief Justice Roberts took issue with a suggestion by Mr. Mertz that schools that seek to inculcate an anti-drug message must permit students, outside the formal classroom setting, to offer competing views. "Where does that notion that our schools have to be content neutral" come from, the chief justice responded. "I thought we wanted our schools to teach something, including something besides just basic elements, including character formation and not to use drugs." Mr. Mertz clarified his point. "There is no requirement of equal time or that it be neutral," he said. The school should be able to express a viewpoint, he continued, but "in the lunchroom, outside in recess, across the street, that is a quintessentially open forum where it would not be proper, I think, to tell students you may not mention this subject, you may not take this position."
A majority of the Court seemed willing to create what would amount to a drug exception to students’ First Amendment rights, much as the Court has in recent years permitted widespread drug testing of students, even those not personally suspected of using drugs, under a relaxed view of the Fourth Amendment prohibition against unreasonable searches. As in many other cases, Justice Kennedy’s vote may prove crucial to the outcome. This case presents a particular challenge for Justice Kennedy. While he is perhaps the most speech-protective of the justices, he is also highly pro-government on issues involving illegal drugs. A clear majority also seemed to side with Ms. Morse on one point: that she shouldn’t have to compensate Joseph. A federal appeals court said Ms. Morse would have to pay Joseph because she should have known her actions violated the Constitution.
Legal Times
By Tony Mauro
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CNN.com
By Associated Press
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New York Times
By Linda Greenhouse
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[Editor’s Note: The Court’s transcript of the oral arguments is available below. Background on the case, including the brief to the Court submitted by NSBA, the American Association of School Administrators, and the National Association of Secondary School Principals, is available starting at the second link. Lead authors on the brief were COSA board of directors member Michael E. Smith and Cathleen C. Hall of the Lozano Smith law firm in Fresno, California, whose services were pro bono. For more coverage, commentary, and reflection on the oral arguments, see NSBA’s blog, BoardBuzz.]
[Supreme Court transcript]
[NSBA School Law pages on Morse v. Frederick]
[BoardBuzz on Bong Hits]