Bong Hits for Jesus (Morse v. Frederick)

I don't follow individual Supreme Court decisions all that closely, but have always had a strong interest in first amendment issues that affect juveniles. For that reason, I was quite surprised that the current court (Morse v. Frederick (no. 06-278 2007) upheld the suspension of a student for holding up a sign at a school-sponsoered event in Juneau, Alaska that read "Bong Hits for Jesus".

The court of appeals had felt that the sign did not create or threaten a substantial disruption, a standard first established in Tinker v. Des Moines, a Vietnam era case in which the court upheld the right of students to wear black arm bands to school to protest the war. Surprisingly, Tinker v. Des Moines was the first case to hold that students had any level of constitutional rights. The Tinker standard was weakened many years later in the Reagan era (1986) Bethel School District v. Fraser in which a student had made an "obscene" speech that didn't cause a disruption. In Bethel, the court basically said "disruption or no disruption, we do not protect obscenity as part of a student's right to free speech."

Morse v. Frederick started in 2002 when the Olympic Torch Relay passed through Juneau and the school granted students' permission to attend and participate. Frederick, a senior at the school, helped unfurl a fourteen foot long banner that read "Bong Hits 4 Jesus". The principal then instructed the students to take the banner down. Frederick was the only student who refused. Morse, the principal, supsended Frederick for ten days for violating a school board policy that prohibits "any public expression that advocates the use of substances that are illegal to minors."

Morse took care to point out that she believed that the banner had advocated drug use as opposed to advocating legalization (which would have been a political statement) or religious beliefs about Jesus and that the school's mission was to educate students about the dangers of illegal drugs. In the Vietnam generation it was black armbands about the war. In Reagan's time it was obscene speeches filled with sexual innuendo. Today, it's behavior inspired by South Park and the Simpsons.

Chief Justice Roberts (according to Newsweek only 11 percent of Americans know that he's the chief justice) wrote the opinion of the court determined that Morse reasonably determined that the banner, nonsenical and silly as it was, potentially promoted drug use. In addition, he stressed the key role schools play in educating children about the dangers of drugs.

Justice Thomas agreed with the court, but wrote a separate opinion to argue that Tinker, the black armband case, had been wrongly decided.

final vote 5-3 (actually 5.5 to 3.5)
Roberts, Thomas, Alito, Scalia, Kennedy for the school
Souter, Stevens, Ginsburg dissented on the grounds that the banner didn't advocate any kind of behavior in particular and thus was not advocating illegal behavior per se. Stevens went on to argue that drug education should not wipe out the right to free speech in any context. He used the very provocative counter example of "wine sips for Jesus" which is both illegal for minors and a part of a Christian ritual.


Breyer agreed and disagreed in part and argued that the District simply has qualified immunity from personal damages and would have let it go at that. It won't be much discussed, but Breyer's opinion is significant. Many attorneys wondered why the court was so anxious to hear this case at all.

There is no question that W's appointments of Alito and Roberts have impacted the court. btw, the Attorney for the School Districtin this case was Kenneth Starr, you might remember him.

Other interesting tidbits.
1) Fredericak got in trouble for marijuana possession while at college
2) Frederick's father who worked for a company that contracts with the Juneau schools lost his job and won a judgment for 200 thousand dollars for wrongful firing.
3) The court made no mention of the "Jesus" part of the sign likely because conservative groups had supported the student because of the arguably favorable mention of Jesus in the banner.

A couple things.
The court's decision in this matter worries me because of the very subjective standard it endorses about the discussion of a given topic. In their view, the administrator could reasonably determine what was "drug" talk and what was not. Second, I don't exactly consider Frederick a hero of the first amendment. One generation of students fought for its right to protest the war at school. This generation went to court to uphold the right to wave a fourteen foot long banner reading "Bong Hits4 Jesus" which Frederick claims he carried because he wanted to get on tv. Sometimes, I think we deserve the country we have.

Thomas Jefferson who some claim smoked an occasional pipe of hemp leaf must be rolling in his grave.

chancelucky