Up in Smoke at the High Court

Breyer lamented that the student's action wasn't "a serious effort" to challenge drug laws. "It was a joke -- it was a 15-foot banner," he told the student's lawyer, Douglas Mertz, before demanding: "What's your response?"

"My response, Your Honor, is that, first of all, it was a 14-foot banner," Mertz answered.

"That's an excellent response," Breyer judged.

It was as good a response as any for a case in which a Dadaist slogan in Juneau will wind up setting a new precedent for students' speech. If Starr and the administration prevail, students might lose any semblance of free expression. If the other side wins, teachers might lose any semblance of order in the classroom.

The justices seemed frustrated with both sides. Starr got only 90 words into his argument before being interrupted by Kennedy, then Souter, each demanding to know how the banner had been disruptive. "I'm missing the argument," Souter told the former Whitewater prosecutor.

Even Chief Justice John Roberts, though sympathetic to Starr's case, pointed out: "The problem, Mr. Starr, is that school boards these days take it upon themselves to broaden their mission well beyond education."

The skepticism grew when Edwin Kneedler, an administration lawyer, tried to argue that a school could ban any speech "inconsistent" with its educational mission. "I find that a very disturbing argument," Samuel Alito said. Schools "can define their educational mission so broadly that they can suppress all sorts of political speech."

Mertz, arguing for the student, fared even worse than Starr and Kneedler. He got out only one sentence -- "This is a case about free speech; it is not a case about drugs" -- before Roberts interrupted.

"It's a case about money," the chief justice said.

"Would you waive damages against this principal, who has devoted her life to this school?" asked Kennedy. "You're seeking damages from her for this sophomoric sign that was held up."

Mertz didn't get much further before Scalia piped up. "This is a very, very -- with all due respect -- ridiculous line," he advised the lawyer, in a tone that did not suggest respect. "Where do you get that line from?"

Scalia, in fact, went even further than Starr in making Starr's case. "Any school," he proposed, "can suppress speech that advocates violation of the law."

"What about listening to the voice of Martin Luther King Jr. -- conscientious objection and so forth?" Starr responded.

The argument was complicated by the plain fact that the justices had no idea what "Bong Hits 4 Jesus" meant in the first place. (The creator of the banner, now living in China, was arrested for distributing marijuana while in college.) "This banner was interpreted as meaning, 'Smoke Pot,' no?" asked Scalia.

"Exactly, yes," Starr answered.

Souter dissented. "It sounds like just a kid's provocative statement to me," he said.

"One could look at these words and say it's just nonsense," Ginsburg concurred. "It isn't clear that this is 'Smoke Pot.' "

But Scalia was moving on. "How about the student who calls out, 'Drugs are good for you -- I use them all the time'?" he proposed. "That's perfectly okay?"