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News

"Bong Hits 4 Jesus": A Student's Irreverent Banner Sets the Stage for a Supreme Court Showdown

(December 28, 2006) - When 18 year-old Joseph Frederick, standing on the sidewalk across the street from his high school in Juneau, Alaska on January 24, 2002, unfurled a banner reading "Bong Hits 4 Jesus" as the Olympic Torch Relay passed by, he undoubtedly hoped to get some attention, but probably not a hearing at the U.S. Supreme Court.

But the school principal, Deborah Morse, spying the irreverent and seemingly pro-marijuana slogan, demanded that Frederick relinquish the banner. Frederick refused, citing his First Amendment right to free speech. Later that day, Morse punished him with a 10-day suspension.

In the lawsuit that followed, a federal district court agreed with Principal Morse that she had the authority to suppress Frederick's speech, even though he was not on school property at the time of the incident, because watching the Torch Relay was a "school-sponsored" event, and because Frederick's apparent message conflicted with the school's strong anti-drug policy.

A federal appeals court reversed, however, reasoning that under the Supreme Court's 1969 decision in Tinker v. Des Moines Independent School District, Frederick's expression was constitutionally protected. Tinker established that students are not just "closed-circuit recipients of only that which the state chooses to communicate," and that administrators must have a well-founded fear that a student's expression will actually disrupt school activities before they can punish or prohibit student speech.

On December 1, 2006, the Supreme Court agreed to review the case of Morse v. Frederick. The justices' attention may have been caught by the assertions of Kenneth Starr, representing the principal and the school district, that Frederick's banner was unfurled at a "school-sponsored, teacher-supervised" event. This version of the facts is clearly contested, though: Frederick had not yet been to school on the date in question; he was not standing on school property; and the event was not school-sponsored in any traditional sense - instead, school officials had simply let the students out that morning to watch the Relay pass by. The Olympic Torch Relay's passage through Juneau was sponsored by Coca-Cola.

Also likely to have influenced the Supreme Court's decision to review the case was the fact that the appeals court ruled that the law was so clear at the time of the incident that the principal wasn't entitled to "qualified immunity" from having to pay money damages to the rebellious student. The doctrine of qualified immunity generally relieves government officials of liability for damages if the law was unclear at the time and they could not, therefore, have been expected to know that what they were doing was unconstitutional. A brief from the National School Boards Associaton, urging the Court to take the case, pleaded the cause of beleaguered school officials who should not, they argued, be subjected to liability for simply trying to maintain discipline and teach youngsters abstinence from drugs.

A final reason for the Supreme Court's interest in this case may be the very subject matter of the banner. Twenty years ago, the Court carved out an exception to the "material disruption" requirement of the Tinker case when it ruled that school officials can punish a student for giving a lewd, innuendo-laden speech at a school assembly. That decision, Bethel School District v. Fraser, centered on the sexual, and to the justices offensive, character of the student's speech. A major question before the Court now is whether Fraser should be extended to allow administrators to punish nonsexual student speech if, like "Bong Hits 4 Jesus," it apparently contradicts the message the school wants to send about drugs.

The court of appeals said no - that Tinker should apply - but actually, even Tinker would give administrators too much leeway here. Since Joseph Frederick expressed himself off school property, and not at a "school-sponsored" event, he should enjoy the same First Amendment rights as any other citizen carrying a banner on a public sidewalk.

Update: On February 20, 2007, the National Coalition Against Censorship and the American Booksellers Foundation for Free Expression filed a friend-of-the-court brief urging the Supreme Court to accord Frederick full First Amendment protection. FEPP Director Marjorie Heins was co-counsel on the brief.

The Supreme Court heard oral argument on March 19, 2007. For a report, see Confusion Reigns at "Bong Hits 4 Jesus" Supreme Court Argument. On June 25, 2007, the Supreme Court, narrowing Tinker, ruled that Morse did not violate Frederick's First Amendment rights. See Supreme Court Carves Out a New Exception to Student Free Speech.

Documents in the case can be found at http://www.lawmemo.com/sct/06/Morse/


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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