When Joseph Frederick, a Juneau, Alaska, high school senior, unrolled a 14-foot banner proclaiming "Bong Hits 4 Jesus" at a 2002 Winter Olympics torch relay rally near his school, he was trying to attract TV cameras. Instead he caught the eye of Deborah Morse, the school’s principal, who crossed the street, grabbed the banner, crumpled it up, and suspended Frederick for 10 days.
Morse was offended not by the banner’s religious content but by what she took to be its pro-marijuana message, which she felt undermined the school’s anti-drug stance. When the U.S. Supreme Court considered the constitutionality of Morse’s heavy-handed censorship on Monday, it seemed a majority might be prepared to accept her interpretation and obligingly carve out a "drug exception" to the First Amendment.
It’s about time. The Supreme Court has been using drug cases to whittle away at the Fourth Amendment’s prohibition of unreasonable searches and seizures for years, leaving freedom of speech untouched. If achieving a drug-free society means students have to hand over their urine as the price for participating in extracurricular activities, why should they be free to mock anti-drug orthodoxy, even unintentionally?
"Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation," Kenneth Starr told the Supreme Court during oral arguments in the "Bong Hits 4 Jesus" case. And if linking the drug culture to Jesus Christ does not qualify as glorification, what does?
Starr, a former solicitor general, feels so strongly about the issue that he is representing Morse and the school district for free. On the other side are the usual suspects: the American Civil Liberties Union, the Drug Policy Alliance, Pat Robertson’s American Center for Law and Justice. Wait a minute.
It turns out that Robertson’s group, which probably does not share whatever sentiment Frederick’s cryptic banner expressed, is not the only organization representing the interests of religious conservatives that is defending the right to offend school administrators. The Christian Legal Society, the Alliance Defense Fund, the Rutherford Institute and the Liberty Legal Institute also are alarmed by the sweeping claim that public school officials may censor any speech they consider contrary to their "educational mission," even if it happens off campus.
Where does that leave students who condemn abortion or homosexuality, question evolution or insist on the importance of Holy Scripture in resolving moral issues? The question does not seem to trouble the Bush administration, for which hostility toward civil liberties is a more consistent theme than friendliness toward the religious right. Deputy Solicitor General Edwin Kneedler told the Supreme Court a school "does not have to tolerate a message that is inconsistent" with its educational mission.
Justice Samuel Alito called this argument "very, very disturbing," noting that schools could suppress a wide range of speech "under the banner of getting rid of speech that’s inconsistent with educational missions." That banner is even vaguer than "Bong Hits 4 Jesus."
When it ruled that confiscating Frederick’s banner violated the First Amendment, the U.S. Court of Appeals for the 9th Circuit said censorship of student speech is not justified "in the absence of concern about disruption of educational activities." No one claims Frederick, who displayed the banner at a school-approved but privately sponsored event on a public street, was preventing students from learning.
Yet according to Justice Anthony Kennedy, whom The New York Times alarmingly describes as "perhaps the most speech-protective of the justices," the banner was "completely disruptive" because it contradicted "the message … the school wanted to promote." Kennedy, the Times reports, is "highly pro-government on issues involving illegal drugs."
Presumably, then, Kennedy also would take a dim view of a message such as "Legalize It." How strange it would be if students had a constitutional right to wear armbands protesting the Vietnam War, as the Court has held, but did not have a constitutional right to wear T-shirts protesting the war on drugs.