COMM 150, 209, 317: Free speech, drugs, "Bong Hits 4 Jesus"

Here's an important case that was argued Monday before the U.S. Supreme Court. It involves a high school student in Juneau, Alaska (notice that AP style always spells out the name of this particular state), who unfurled a banner during a school-sanctioned event that said "Bong Hits 4 Jesus." The school principal said the kid was advocating drug use, while the student said he was testing the limits on his rights of free speech. Mark Sherman of The Associated Press reports:

WASHINGTON -- A high school principal was acting reasonably and in accord with the school’s anti-drug mission when she suspended a student for displaying a "Bong Hits 4 Jesus" banner, her lawyer told the Supreme Court today.

"The message here is, in fact, critical," the lawyer, former independent counsel Kenneth Starr, said during a lively argument about whether the principal violated the constitutional rights of the student.

On the other side, attorney Douglas Mertz of Juneau urged the justices to see the case as being about free speech, not drugs.

The dispute between Joseph Frederick, who in 2002 was a high school senior, and principal Deborah Morse has become an important test of the limits on the free speech rights of students.

I'm going to use the AP story to show how lawyers think through a case.

What are the facts? Our system of law, which we inherited from the English, is based on the way courts apply the "black letter law" (i.e. what's written in the law books) to individual cases. And the facts of each case are different. Here's how the AP story sets out the facts in this one:

Frederick was a high school senior in Juneau when he decided to display the banner at a school-sanctioned event to watch the Olympic torch pass through the city on its way to the 2002 Winter Games in Salt Lake City.

Morse believed his "Bong Hits 4 Jesus" banner was a pro-drug message that schools should not tolerate. She suspended Frederick for 10 days. Frederick sued Morse, and that case now is before the court.

See how the facts give rise to the argument over whether the case is about free speech or drug use?

What's the issue? To lawyers, an issue is an undecided question that can be answered one way or the other. The issue in a case is the yes-or-no question that decides the case. In this one, it goes like this: The schools in Juneau try to teach kids not to use drugs, so exercising his free speech about "Bong Hits" brought Frederick into conflict with that school district policy. Or did it?

Here's how Sherman of The AP frames the issue:

Frederick acknowledged he was trying to provoke a reaction from school administrators with whom he had feuded, but he denied that he was speaking out in favor of drugs or anything other than free speech. A bong is a water pipe that is used to smoke marijuana.

"I waited until the perfect moment to unveil it, as the TV cameras (following the torch relay) passed," Frederick said.

Morse and the Juneau school district argue that schools will be powerless to discipline students who promote illegal drugs if the court sides with Frederick. The Bush administration, other school boards and anti-drug school groups are supporting Morse.

Frederick, now 23, counters that students could be silenced if the court reverses the appellate ruling. A wide assortment of conservative and liberal advocacy groups are behind Frederick.

See how it works? If Frederick's sign was nonsense, it didn't violate school policy. But if it was about drugs, it did. So the high court will have to rule on the facts.

What is the law of the case?. The other part of an appellate court case is the law governing the case. Part of it here is the school district policy. If Fredrick had unfurled a banner about sweat socks, puppies or goldfish or anything but drugs, it presumably wouldn't have violated the policy. So that's part of the case. And as so often happens in the Anglo-American system, the law in the "Bong Hits 4 Jesus" case consists largely of earlier court decisions or precedents. Here's how Sherman explains it:

In a Vietnam War era case, the court backed high school student anti-war protesters who wore armbands to class. Since then, though, the court has sanctioned curtailing student speech when it is disruptive to a school’s educational mission, plainly offensive or part of a school-sponsored activity like a student newspaper.

A federal appeals court called Frederick's message "vague and nonsensical" in ruling that his civil rights had been violated. The 9th U.S. Circuit Court of Appeals also said Morse would have to compensate Frederick for her actions because she should have known they violated the Constitution.

In other words the 9th Circuit Court, which covers West Coast states including Alaska, agreed with Frederick's argument on the issue by saying his message wasn't about drugs. It is now up to the Supreme Court to uphold the circuit court's decision or to overturn it. A decision is expected in June, at the end of the high court's current term.

From your reading of the case, how do you think the Surpreme Court will rule? How would you rule if you a supreme court justice?