Pubdate: Sun, 18 Mar 2007
Source: Anchorage Daily News (AK)
Copyright: 2007 The Anchorage Daily News
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Compiled by Tom Kizzia, Design by Ben Harris
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Bookmark: http://www.mapinc.org/find?225 (Students - United States)
Bookmark: http://www.mapinc.org/pot.htm (Marijuana)

TESTING THE LIMITS OF FREE SPEECH

Monday, the U.S. Supreme Court will hear oral arguments in Morse v. 
Frederick, which asks if Juneau schools wrongly quashed a student's 
free-speech rights. Here is background on the case and its issues.

What Started the Case?

On Jan. 24, 2002, 18-year-old student Joseph Frederick unfurled a 
banner across the street from Juneau-Douglas High School proclaiming 
"Bong Hits 4 Jesus." School had been let out to watch the Olympic 
torch parade pass by. Principal Deborah Morse took the banner and 
suspended him. He appealed, then took his case to federal court, 
saying his First Amendment rights had been violated.

What Did His Banner Mean?

A bong is a water pipe for smoking marijuana. As for the rest of it 
- -- Frederick said he was wanted a nonsensical, funny, provocative 
phrase to get on TV and make a point about free speech. School 
officials said the banner promoted drug use, violating school policy.

"I wasn't trying to spread any idea. I was just trying to assert my right."

. Joseph Frederick

"Debate in a social studies class would be fine. That's protected and 
encouraged speech. But promotion of drug use outside class is not."

. Current Juneau School Superintendent Peggy Cowan

What Happened in Court?

Both sides agreed on most basic facts and skipped a trial. U.S. 
District Court Judge John Sedwick backed the school district on the 
key constitutional questions in May 2003. Frederick appealed, and the 
9th U.S. Circuit Court of Appeals overruled Sedwick last March. The 
school board appealed. The U.S. Supreme Court takes very few such 
cases but agreed to hear this one.

Is Student Free Speech Limited?

Yes. The Supreme Court has said students do not "shed their 
constitutional rights to freedom of speech or expression at the 
schoolhouse gate." But it has drawn limits in three landmark cases:

Tinker, 1969: Conduct cannot "disrupt" school or infringe on other 
students' rights. In this case, the court ruled that black armbands 
worn to protest the Vietnam War were not disruptive.

Fraser, 1986: Language cannot be "plainly offensive." A student 
speech filled with "sexual innuendo" at an assembly was not allowed

Kuhlmeier, 1988: School-sponsored functions such as a school 
newspaper can be restricted. A school paper could not publish stories 
on divorce and pregnancy over the principal's objection.

Does It Matter That This Case Took Place in Alaska?

A little, the 9th Circuit said. Alaska has had an ongoing legal and 
political debate over criminalization of marijuana, the court noted. 
The court wondered if the school's laudable anti-drug policy would 
mean administrators could censor a student handing out the Alaska 
Supreme Court decision allowing private possession of marijuana.

What Are the School District's Arguments?

Frederick's "antisocial publicity stunt" was meant to disrupt a 
school activity (Tinker) and his message was "plainly offensive" 
(Fraser) and inconsistent with the school's mission to promote a 
healthy, drug-free life.

"The First Amendment does not require hamstringing school officials 
in the fight against illegal drug use by teens."

. Amicus brief by DARE America, an anti-drug group

What Are Frederick's Arguments?

The banner incident was a political statement about free speech, not 
a promotion of drug use, and therefore protected by the Constitution. 
No disruption of school was ever shown. The case is really about the 
school's ability to censor speech that officials interpret as 
contradicting their own preferred message.

"(Officials) crossed the line between legitimately conveying their 
own message promoting a healthy drug-free lifestyle and unlawfully 
suppressing what they perceived to be Frederick's contrary opinion."

. Main Frederick brief, Douglas Mertz and ACLU

Who Are the Lawyers?

For Frederick, Douglas Mertz of Juneau, a former assistant attorney 
general, with support from the American Civil Liberties Union.

For the Juneau School Board, Kenneth Starr, former U.S. solicitor 
general and independent prosecutor whose Monica Lewinsky 
investigation led to President Clinton's impeachment trial.

Where Can I Read the Legal Briefs Filed in the Case?

For briefs that argue Joseph Frederick and the Juneau School 
District's sides, or to read last year's 9th Circuit decision, go to adn.com.

Can I Watch or Listen to the Oral Argument?

Only if you're in Washington, D.C. But a full transcript should be 
posted at about 10 a.m. ADT Monday on the court's Web site at 
www.supremecourtus.gov/oral_arguments/argument_transcripts.html .

When Will the Court Decide?

Before the end of June.

How Much Does This Cost?

Douglas Mertz and Kenneth Starr are working for free. If Frederick 
wins, Mertz will be due attorney's fees from the school district. 
Insurance will cover most of those and other costs, said Juneau 
Superintendent Peggy Cowan. She said the district would pay $25,000 
to $50,000, with some of that coming from the state school board association.

What 'Friends of the Court' Have Joined the Case?

For Frederick: A dozen groups ranging from the Christian Legal 
Society to the Lambda Legal Defense and Education Fund (a gay-rights 
group), plus some conservative constitutional-rights groups. Many 
don't agree with Frederick's choice of words but fear schools will 
censor other kinds of speech or weave a "suffocating blanket of 
political correctness."

For the school: The National School Boards Association, anti-drug 
groups and the U.S. solicitor general. The Bush administration 
position called the banner "advocacy of unlawful conduct."

How Can Morse Be Liable? Wasn't She Just Doing Her Job?

This is an important second point before the court. The 9th Circuit 
said Morse had committed such an obvious violation of Frederick's 
free-speech rights that she forfeited the "qualified immunity" 
normally given to officials enforcing school policy. Mertz argues the 
whole case arose because of "Morse's colossal misjudgment."

But Morse's supporters say school officials across the nation 
couldn't do their jobs with such a ruling over their heads. If her 
"proper" course of action was so clear that morning, they say, why 
was she later backed up by the local superintendent, the school board 
and a federal district judge?

Was the Banner on TV?

Not that day, apparently. But Frederick got publicity beyond his 
dreams. By the time Kenneth Starr got involved in the case last 
summer, the number of Internet hits on Google for the phrase "Bong 
Hits 4 Jesus" was up to 14,000. This month the number is more than 54,000.
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MAP posted-by: Richard Lake