Precedent 4 Student Speech

Wednesday, March 21, 2007

WHAT IS a bong hit 4 Jesus? We're not sure, and we doubt anyone really knows what the phrase means -- which is one reason the Supreme Court ought not to regard it as prohibited speech.

Joseph Frederick, the protagonist in a case the justices heard Monday, unfurled a banner that read "Bong Hits 4 Jesus" across from his Juneau, Alaska, high school in 2002. His unamused principal ripped it down and suspended him. The Court of Appeals for the 9th Circuit ruled that the principal had violated Mr. Frederick's First Amendment rights; now it's up to the Supreme Court to decide whether Mr. Frederick's sophomoric signage was protected speech.

Existing precedent, which is rightly cautious about limiting First Amendment freedoms, indicates that high school administrators can regulate speech on campus if it is school sponsored, vulgar or disruptive to the school's basic work. Mr. Frederick's banner was neither school sponsored nor vulgar, and it did not cause a disturbance on campus. The school's lawyers argue that the banner promoted marijuana smoking, which is antithetical to the school's anti-drug mission. But the sign's nonsensical content does not support that claim. In fact, the banner essentially said nothing and did not cause a stir, so it's difficult to see how it harmed the school's anti-drug efforts.

The harder question, which the justices do not necessarily have to answer in this case, is what happens when a student tries to send a real message at school -- perhaps one that is unambiguously pro-auto theft or anti-gay. As current precedent maintains, there is room within the First Amendment for school districts to regulate student speech in order to educate and maintain discipline. That covers speech that is patently offensive.

But as the 9th Circuit pointed out, establishing a standard that is too deferential to school administrators would make it legal, for example, to stop students from distributing copies of the Alaska Supreme Court's decision allowing personal marijuana use in the state. It is distressingly easy to see how such a precedent could apply to expressions of support for other activities that administrators might not condone, such as the distribution of pamphlets discussing civil disobedience or expressions of disagreement with standing laws. The court should ensure that administrators cannot define a school's basic educational mission so broadly -- inculcating "good citizenship," for example -- that they have the power to suppress any meaningful speech with which they, or their school boards, disagree.


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