- The Washington Times - Thursday, October 5, 2006

Can the nation’s public high schools stop students from displaying messages that promote or advocate illegal drug use without violating the First Amendment-protected right of free speech?

That’s the gist of the question that the U.S. Supreme Court now is being asked to consider in a case called Frederick v. Morse coming out of the liberal-leaning 9th Circuit Court of Appeals.

In this dispute, the 9th Circuit ruled in March in favor of a Juneau, Alaska, high school senior named Joseph Frederick, who unfurled a banner reading “Bong Hits 4 Jesus” while standing on a sidewalk adjacent to school property as the Olympic torch relay passed by back in 2002. The students had the school’s permission to be there, under faculty supervision.

In tossing out the suspension given to Mr. Frederick, the appellate court rejected the school’s assertion that the suppression of his speech was justified because the banner was “inconsistent with the district’s basic educational mission to promote a healthy, drug-free life style.”

Although the message on the banner may seem silly and even nonsensical, the Supreme Court should grant the school’s motion to hear the case filed in late August by former Independent Counsel Kenneth W. Starr and his firm, Kirkland & Ellis.

In particular, the case should be considered not simply to resolve the question about pro-drug speech in public schools, but perhaps more importantly to resuscitate the high court’s moribund and muddled jurisprudence of student free-expression rights.

The Supreme Court has ruled directly only three times in its history in cases affecting student speech rights in public school settings. The most recent of those decisions came nearly 20 years ago, in 1988, and involved a traditional high-school newspaper that was produced as part of the school curriculum.

In the meantime, schools have grappled with a multitude of new problems, including violent on-campus outbursts like that at Columbine High School, technology such as the Internet that provides students with fingertip access to questionable content — on and off campus — and a generation of minors that engage, perhaps too early, in both behavior and speech once reserved for the adult population.

In addition, students are now creating their own Web sites and using social networks like MySpace.com to make disparaging remarks about school officials, teachers and fellow students.

In brief, it’s totally different landscape today than it was the last time the Supreme Court considered a high-school speech case.

In the absence of any clear guidelines from the nation’s high court, federal judges have attempted, with varying results, to balance minors’ constitutional rights with the schools’ ability to maintain order in the classroom. The lower courts are forced to try to squeeze current controversies into the framework of the trio of Supreme Court precedents — a task that is far from easy given that most of the new disputes do not fit squarely into those precedents.

In August, for instance, another federal appellate court, the 2nd Circuit Court of Appeals, dealt with a drug-related message case, albeit one with a far more clear political message than the “Bong Hits 4 Jesus” banner.

In particular, the Second Circuit upheld the First Amendment right of a seventh grader in Vermont to wear to school a T-shirt with images of cocaine and a martini glass that, through text and images, accused President Bush of being a “Lying Drunk Driver” and an “AWOL Draft Dodger.” The images of drugs and alcohol were meant to impugn Mr. Bush’s character, who long ago gave up drinking.

In ruling in favor of the student and what it called his “anti-drug political message,” the appellate court aptly summed up the current status of school speech law: “The case requires us to sail into the unsettled waters of free speech rights in public schools, waters rife with shoals and uncertain currents.”

The Supreme Court should now begin to settle the choppy seas of speech, and the case of Frederick v. Morse is an appropriate place to begin this difficult task.

Ultimately, while Mr. Frederick’s bong-hits banner may be childish and inane — he contends the only real purpose of it was to get on TV — the case nonetheless raises larger issues of free speech, drugs and the authority of public schools that are ripe for review.

Clay Calvert and Robert D. Richards are co-directors of the Pennsylvania Center for the First Amendment and professors of communications and law at Pennsylvania State University.

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