Supreme Court rules in 'Bong Hits 4 Jesus' case

Decision says school administrators can prohibit speech advocating illegal drugs

WASHINGTON, D.C. -- The Supreme Court ruled Monday in the “Bong Hits 4 Jesus” case that schools do not violate a student’s First Amendment free-speech rights by punishing speech that appears to promote drugs at a school-sponsored event.

The Court reversed the Ninth U.S. Circuit Court of Appeals decision in Morse v. Frederick by deciding that Joseph Frederick, a former student at Juneau-Douglas High School, was not protected by the First Amendment when he held up a banner with the words “Bong Hits 4 Jesus” across the street from his school during a 2002 Olympic Torch Relay. The decision, written by Chief Justice John Roberts of the United States, states the ruling was made in favor of Principal Deborah Morse and the school because the banner could be interpreted as a pro-illegal drug-use message at a school-sanctioned activity.

Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito concurred with the Roberts opinion while Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter dissented. Justice Stephen Breyer concurred in part and gave a partial dissent to the opinion.

The Ninth U.S. Circuit Court of Appeals previously ruled in favor of Frederick, using the 1969 U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District, and finding that Morse’s actions are unconstitutional because the banner did not “materially or substantially disrupt the work and discipline of the school.”

But the Supreme Court’s decision cites the Court’s 1986 Bethel School District v. Fraser decision -- a case involving sexually suggestive speech delivered at a high school assembly -- to justify its decision in Morse, stating that students in public schools do not have the same constitutional rights as adults and arguing that the standard set by Tinker is not absolute.

The Court agreed with Morse that the 14-foot banner could be read as a promotion of drug use, deciding that the “Bong Hits” message could be interpreted as either encouraging viewers to smoke marijuana or celebrating of drug use. The Court also agreed that the speech took place at a school-sponsored event, although the banner was held up off campus on a public street.

“Because schools may take steps to safeguard those entrusted to their care from speech that can be reasonably regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick,” the decision reads.

Stevens, who wrote the dissents and was joined by Ginsburg and Souter, wrote that the First Amendment should not be curtailed by a “nonsense banner” containing “an oblique reference to drugs.”

“[I]t is one thing to restrict speech that advocates drug use,” Stevens wrote. “It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively -- and not very reasonably -- thinks is tantamount to express advocacy.”

Breyer in his partial dissent stated that the Court should have only held that Frederick cannot seek monetary damages for being disciplined and that attempting to resolve the First Amendment question is “unwise and unnecessary.

Jason Brandeis, staff attorney for the Alaska ACLU and co-counsel for Frederick said he is concerned that the decision will set a dangerous precedent for censorship of speech that does not create a disruption of the educational environment.

“This decision seems to create a drug exception to First Amendment with respect to student speech without any real justification about why the student free speech can be censored,” he said.

Mark Goodman, executive director of the Student Press Law Center, said although he is disappointed in the decision, he sees it as a narrow ruling that only allows school officials to limit student speech that promotes illegal drug use and not speech relating to discussion of political and social issues.

“It’s disappointing that the Court once again felt the need to diminish student First Amendment protection at a time when teenagers’ understanding and appreciation for the First Amendment is so incredibly low,” he said. “The last thing the country needs is a court ruling that further diminishes its relevance to their lives.”

Frederick, then an 18-year-old senior at Juneau-Douglas High School, said he had his banner confiscated and was suspended 10 days -- five days for displaying the banner and five days for refusing to divulge the names of the other participants and quoting Thomas Jefferson: “Speech limited is speech lost.”

Frederick, who later said he deliberately unfurled the banner to test “the limits” of his free speech, filed a lawsuit against Morse and the Juneau School Board in a federal district court after losing appeals to the superintendent and board. The court ruled in favor of the school, but Frederick took his case to the Ninth U.S. Circuit Court of Appeals, which unanimously reversed the lower court’s ruling by deciding that “[n]o educational function was disrupted” by the banner and that the school had violated the First Amendment.

The school board asked the Supreme Court to review the case, and the Court heard oral arguments March 19.

A number of diverse organizations, ranging from the traditionally conservative Alliance Defense Fund to the Drug Policy Alliance filed amicus briefs to the court in support of Frederick. Many groups, including the National School Boards Association and Drug Abuse Resistance Education, filed for Morse.

Frederick, who recently returned from studying in China, could not be reached for comment.

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