‘Bong Hits’ ruling reminds us free speech is fleeting

By Freedom Newspapers

In the case of Morse v. Frederick, the “Bong Hits 4 Jesus” case, handed down Monday, the Supreme Court extended its proclivity to make a “drug war exception” to the Bill of Rights whenever possible.

In the past, with its tolerant attitude to “no-knock” searches and searches on schools, the court has diluted the Fourth Amendment’s prohibition against unreasonable searches and seizure when it came to trying to enforce drug prohibition.

Now it has diluted the First Amendment’s protection of the right to freedom of speech and expression.

On Jan. 24, 2002, the winter Olympic Torch Relay passed through Juneau, Alaska, running along a street next to Juneau-Douglas High School during class hours. Deborah Morse, the school principal, allowed students to leave school to watch the torch relay.

Joseph Frederick, a senior, did not show up for school that day but came later to watch the relay with some friends. When the torch passed by, he and his friends unfurled a 14-foot banner with the “bong” slogan on it.

Principal Morse, interpreting the slogan as promoting illegal drug use, crossed the street and ordered the banner taken down. When Frederick refused, she confiscated the banner and suspended him for 10 days.

Frederick appealed the suspension to the school board, which upheld it, and then to a district court, claiming his First Amendment free speech rights had been violated. The district court supported Morse, but the 9th Circuit appeals court reversed, ruling that Morse should have known Frederick had a right to express his opinion, even at a school event.

The high court ruled that Morse was justified in what she did, reversing the 9th Circuit. To do so it had to interpret every fact in the direction of allowing suppression of speech.

The school board had a policy prohibiting “any assembly or public expression that … advocates the use of substances that are illegal to minors” at school. Did this banner advocate illegal drug use? It could be seen that way, but Frederick said it was “just nonsense meant to attract television cameras.”

Was this a school event? Attendance was authorized by the principal, but it was also a public event, and Frederick was not on the school grounds. Was Frederick at school that day and thus under the school’s jurisdiction? He didn’t show up for class and could have been considered absent. Did the fact that he was 18 and thus not a minor under Alaska law make any difference?

On every issue that some might see as a close call, the high court decided in favor of the interpretation that supported the legitimacy of censoring the banner by removing it. In so doing it modestly extended the reach of schools to regulate what students may do and say at events that may or may not be official school events, and extended the ability of school authorities to regulate the content of speech.

That’s not a trivial point. Frederick was supported by an unusual coalition of gay and lesbian groups and Christian legal groups. The gay and lesbian groups feared that if this suppression of speech were permitted that schools might be able to suppress students who wanted to “come out” publicly. The Christian groups feared that at schools with a policy mandating tolerance toward gays that those who believed such behavior is morally wrong or sinful might not be allowed to say so.

To be sure, several justices made an important distinction, arguing that Frederick’s sign was an impermissible advocacy of illegal drug use, but that, for example, a banner that simply said “Legalize Marijuana,” would have been a political statement and therefore protected by the First Amendment.

We’re pleased the high court recognized that distinction, but troubled that it endorsed a completely unnecessary and potentially dangerous suppression of freedom of speech.