Justices Consider Rights Issues
Decisions on Speech, Property Limits Could Be Far-Reaching

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.

It is an argument made by some of the conservative legal and religious groups that are in an unlikely alliance with Frederick and his chief sponsor, the American Civil Liberties Union.

But some justices seem uneasy about labeling as protected free speech what Justice Anthony M. Kennedy called Frederick's "sophomoric" message. Justice Antonin Scalia wondered whether schools could simply forbid speech that advocates illegal acts. Kennedy did not agree with Frederick's attorney, Douglas Mertz, that his client's action was not disruptive.

Chief Justice John G. Roberts Jr. seemed to indicate that maybe student free speech could end at the schoolhouse gate. "I mean, why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda?" he asked.

In rancher Robbins's case, the justices were called to consider what the government said would be a major, and unwarranted, expansion of the right to sue government officials for alleged transgressions.

Robbins's feud with the Bureau of Land Management began almost as soon as the Alabama-born man bought his vast High Island Ranch, which stretches nearly 40 miles. The government wanted an easement on part of his ranch to get to public land. Why that did not happen is in dispute, but Robbins alleges a long series of harassment from the government to get him to give up the easement.

An appellate court said Robbins could proceed with his lawsuit charging bureau agents with extortion and conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO).

"When someone says, 'I do not want to give you my property, you have to take it from me and give me just compensation,' the position of the government here is that there is no constitutional limit on the kind of retaliation they can engage in," said Harvard law professor Laurence H. Tribe, who is representing Robbins.

But the solicitor general's office argues that the RICO statute was never intended to punish government agents -- even overzealous ones.

What Robbins calls extortion, Roberts said, might also be called "trying to save the taxpayers money and getting the type of reciprocal agreement with this landowner that they have got with thousands of others."

The cases are Morse v. Frederick, No. 06-278, and Wilkie v. Robbins, No. 06-219.

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