Pubdate: Tue, 26 Jun 2007
Source: San Francisco Chronicle (CA)
Page: A - 8
Copyright: 2007 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko, Chronicle Staff Writer
Bookmark: http://www.mapinc.org/people/Joseph+Frederick (Joseph Frederick)

U.S. SUPREME COURT

'Bong' Case Limits Student Speech

The U.S. Supreme Court tightened limits on student speech Monday, 
allowing schools to punish youths for statements that might promote 
drug use -- a ruling that gives new prominence to laws in California 
and a handful of other states that provide protections for expression 
on campus.

The 5-3 decision came on a day when the court's conservative majority 
flexed its muscles with rulings that favored corporate and union 
political donors, developers and the Bush administration's efforts to 
steer federal money for social services to religious groups. The 
final rulings of the 2006-2007 term, including one on whether school 
districts can consider students' race in integration plans, are 
scheduled to be released Thursday.

The student speech case involved an Alaska high school senior who 
raised a banner reading, "Bong Hits 4 Jesus," at a school-sanctioned 
event outside campus. The school principal seized the banner and 
suspended the student for 10 days.

The court said that although the message was "cryptic," the principal 
had reasonably interpreted it as promoting the use of bongs -- 
marijuana water pipes -- and that such a statement by a student was 
not covered by the Constitution's free speech guarantee.

"Schools may take steps to safeguard those entrusted to their care 
from speech that can reasonably be regarded as encouraging illegal 
drug use," Chief Justice John Roberts said in the majority opinion.

He said the court was not retreating from free speech principles it 
established in a 1969 case of students who wore black armbands in a 
silent protest against the Vietnam War. In that ruling, the justices 
said schools must allow free expression unless it disrupts education.

The court has narrowed that principle in subsequent cases, ruling in 
1986 that schools could prohibit sexually suggestive speech and in 
1988 that they could censor student newspapers.

Dissenters from Monday's ruling said the latest case was a further 
erosion of students' free speech rights.

"The court's ham-handed, categorical approach is deaf to the 
constitutional imperative to permit unfettered debate, even among 
high school students, about the wisdom of the war on drugs," Justice 
John Paul Stevens wrote.

While arguing that the court shouldn't have accepted the principal's 
"strained reading" of the bong banner, Stevens said the ruling would 
also allow school administrators to punish a student for speech that 
directly challenged drug laws. That, he said, would be contrary to 
the spirit of the 1969 decision.

The ruling is likely to have little effect in California, one of 
about a half-dozen states with laws that specifically protect student 
expression. A 1983 California statute entitles public school students 
to freedom of speech and of the press unless what they say is obscene 
or libelous, or unless it creates a "clear and present danger" of 
lawbreaking or disorder on campus.

A state appeals court in San Francisco relied on that law last month 
in ruling against officials of Novato High School who confiscated a 
student newspaper in 2001 because of an editorial saying any Latino 
who couldn't speak English was probably an illegal immigrant.

"The whole purpose (of the state law) is to provide greater 
protection than the First Amendment in the public schools," said 
Peter Scheer, executive director of the California First Amendment 
Coalition, a media advocacy organization. "Students, particularly in 
the higher grades, ought to enjoy essentially the same freedom of 
speech that their parents enjoy."

Michael Smith, an attorney in Fresno who represented the National 
School Boards Association in the Supreme Court case, called Monday's 
ruling "a victory for schools across the nation" but agreed that in 
California, "it is entirely possible that the student's speech would 
be protected."

The Alaska student, Joseph Frederick, unfurled a 14-foot "Bong Hits 4 
Jesus" banner in January 2002 while a torch relay for the Winter 
Olympics was passing by Juneau-Douglas High School and students were 
being let out of class to watch it.

The principal, Deborah Morse, crossed the street and demanded that 
Frederick and his friends take the banner down. When Frederick 
refused, Morse grabbed the sign and crumpled it.

Frederick said "Bong Hits 4 Jesus" was a nonsense message and that 
his only goal had been to get on television. But Morse suspended him 
for 10 days for promoting drug use contrary to school policy.

Frederick, now 24, sought damages and an order removing the 
suspension from his record. His lawyer, Douglas Mertz, said he still 
has a case under Alaska law.

Legal commentators said Monday's ruling appeared to be narrowly 
written but reflected the court's gradual narrowing of free speech in 
schools since the Vietnam War armband case.

Although the ruling is limited to drug-related speech, it shows that 
the court is no longer "putting a strong thumb on the First Amendment 
scale (in favor of) students," said Jesse Choper, a UC Berkeley law professor.

USC law Professor David Cruz, an American Civil Liberties Union board 
member, said the court was allowing a student to be punished for a 
statement that "could be seen as celebrating" marijuana use but not 
necessarily advocating it.

At the same time, he noted, two members of the majority, Justices 
Samuel Alito and Anthony Kennedy, said in a separate opinion that 
they would go along with punishing advocacy of illegal drug use but 
would oppose discipline for a student's political commentary on drugs 
or other subjects.

Another justice in the majority, Clarence Thomas, wrote that the 
court should overrule its 1969 decision, deny free speech protections 
for students and return to the days when "teachers commanded and 
students obeyed."

Justice Antonin Scalia provided the fifth vote for the majority.

Stevens' dissent was joined by Justices David Souter and Ruth Bader Ginsburg.

The ninth justice, Stephen Breyer, said the court should have 
sidestepped the constitutional issue and ruled only that the 
principal had violated no clearly established rights and could not be 
sued for damages.

The case is Morse vs. Frederick, 06-278.
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MAP posted-by: Jay Bergstrom