The Legal Virtue of…….BONG HITS 4 JESUS

Drugs! Free Speech! Religious liberty! Holding the line against the rising tide of utter chaos in America’s schools! Plus—the return of Clinton-badgerer Kenneth Starr in all his self-righteous glory!

Today the Supremes will begin to hear arguments on an issue that has it all: Frederick v. Morse—otherwise known as the BONG HITS 4 JESUS case.

This is shaping up to be a high-stakes legal drama worth watching closely. It has the potential to overturn a landmark ruling that, for 38 years, has protected the free speech rights of American students from overzealous and/or punitive teachers and school administrators.

If the case has somehow escaped your attention, Frederick v. Morse lays out as follows:

On a snowy morning in 2002, when the Olympic torch was being carried through the streets of Juneau, Alaska en route to the Winter Games in Salt Lake City, the students from Juneau-Douglas High School were allowed to cut class to watch the relay, which happened to pass right in front of school. As the torch and the accompanying CNN camera crew approached, an eighteen-year-old Juneau-Douglass senior named Joseph Frederick hoisted up a 14-foot, white banner that was cheerily hand-painted with the message: BONG HITS 4 JESUS.

By all available accounts, young Joe was neither a stoner nor a drug activist. It was more that he was looking to prove a point to the school principal, Deborah Morse, with whom he already had a running battle of wills. (Frederick’s personal view of events is detailed rather interestingly and at length in an online treatise.) When Morse saw the sign, she barreled across the street, yanked it out of Frederick’s hands, and promptly suspended him from school for five days. After Fredrick invoked his First Amendment rights and quoted both Thomas Jefferson and Voltaire in rapid succession, a furious Morse told him he’d just bought himself an additional five days of suspension.

Frederick and his parents protested the suspension to the district. After all, they contended, Frederick came to the torch event from home that morning, not from school. And, most importantly, he was not standing on school property when he and several friends unrolled the banner. They were standing on the sidewalk directly across from the campus (where they hoped that the CNN cameras, and Morse, would see them).

District superintendent, Peggy Cowen, concluded that the school had the right to suspend Frederick since his message violated the school’s anti-drug policy.

With most kids, it would have ended there. But Frederick sued. He lost in federal district court, but the 9th U.S. Circuit Court of Appeals agreed that the principal had seriously overstepped and that, since Fredrick’s actions didn’t disrupt the function of the school or impinge on the rights of others, nor were they obscene or promoting of violence—they were, in fact, protected. The unhappy district, fearful that the suit would open the door to similar lawsuits seeking monetary damages, took the case to the Supreme Court.

Which brings us to today. In addition to the ACLU, those arguing in Frederick’s behalf include a boggling array of strange legal bedfellows—from drug and gay rights groups, to a string of conservative Christian organizations. The latter fear that a decision against Frederick will also impinge upon the rights of students’ individual religious expression, have joined in a series of strongly-worded Amicus Briefs.

The precedent at stake here is Tinker v. Des Moines, a 1969 case involving three students who wore black armbands to protest the Vietnam War. Back then, SCOTUS ruled that kids do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Tinker ruling has been considered relatively sacrosanct until the shooting at Columbine High School ushered in a new era of sub-zero tolerance and clamping down on student rights.

Now we have Ken Starr representing the school district. He is expected to argue that watching the torch relay was a school sponsored event, therefore the school had every right to snatch the banner and punish Frederick because free speech “may be banned if it is inconsistent with a school’s basic educational mission.

This is a lousy and dangerous argument

Imagine for a minute how the First Amendment might read with Starr’s line of reasoning appended:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances—unless such speech, religion or right to assemble is inconsistent with the basic mission of….”

Of what??? A school? A political party? A government’s preferred views?

There is no acceptable way to finish that sentence.

The US government has had plenty of preferred views< that were later proven to run counter to the nation’s health and well being.

Yes, Joe Frederick used a juvenile and deliberately provocative stunt to make a point with his school principal. But—stunt or no— it also happens to be an act of expression that is, from Constitutional perspective……protected.

Let’s hope it stays that way.