Justices Consider Rights Issues

By Robert Barnes
Washington Post Staff Writer
Tuesday, March 20, 2007

Move aside, Microsoft v. AT & T, antitrust litigants, corporate wrongdoers, environmental activists and death row inmates looking for one last appeal.

Yesterday at the Supreme Court was a day for rebels from the old frontier.

In two uniquely American fights pitting individuals against their government, the justices spent the morning considering a high school student from Alaska who argues that his "Bong Hits 4 Jesus" banner was well within his First Amendment rights, and a rancher from Wyoming who says that government harassment threatens his livelihood.

And despite the very specific and unusual facts of the individual cases, the court's decisions could provide lasting and far-reaching consequences.

The Bush administration argues in the banner case that schools have broad leeway to ban student speech that conflicts with "a school's basic educational mission." And rancher Harvey Frank Robbins asks that the court recognize that the Fifth Amendment protections of private property rights also contain a guarantee against retaliation and a right to sue government officials for conspiracy.

The justices seemed especially animated by the banner case, hardly able to let one another finish a thought before proposing another hypothetical message that may -- or may not -- be protected by the court's 1969 decision that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

The case involves former Juneau high school student Joseph Frederick, who unfurled his 14-foot banner at a parade off school grounds as the Olympic torch was passing through his town five years ago. His principal, Deborah Morse, took it from him and, despite his pleas that he was exercising his free-speech rights, suspended him for 10 days. The school board upheld the suspension, agreeing with Morse that Frederick's message insinuated approval of smoking marijuana and that it was counter to the school's mission of discouraging illegal drug use.

"This case is ultimately about drugs and other illegal substances," said former solicitor general Kenneth W. Starr -- perhaps better known as the special prosecutor of President Bill Clinton -- who is representing the school board pro bono.

Starr pointed out that the court has allowed schools to limit speech since that landmark 1969 ruling in Tinker v. Des Moines Independent Community School District, saying that speech that is disruptive or lewd or that is part of an official school publication such as a newspaper can be restricted.

Justice David H. Souter said he did not see that in this case, "unless disruption simply means any statement of disagreement with a position officially adopted by the school."

When Deputy Solicitor General Edwin S. Kneedler began to argue just that, that a school does not have to "tolerate a message that is inconsistent with its basic educational -- " Justice Samuel A. Alito Jr. cut him off before he could say "mission."

"I find that a very, very disturbing argument, because schools have, and they can define their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students," Alito said.

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