A Less-Than-Banner Ruling

Of bong hits and First Amendment freedoms

THE SUPREME Court fractured on a case involving student speech rights this week. The result was not good for First Amendment freedoms on campus.

In 2002, then-high school senior Joseph Frederick unfurled a banner that read "Bong Hits 4 Jesus" during a school-sanctioned event across from his Juneau, Alaska, campus. His principal promptly tore it down and suspended the student. Mr. Frederick challenged the punishment, claiming that the principal had violated his First Amendment rights, and the U.S. Court of Appeals for the 9th Circuit agreed. But on Monday the Supreme Court reversed that decision. Chief Justice John G. Roberts Jr. wrote for the majority: "The 'special characteristics of the school environment' . . . and the governmental interest in stopping student drug abuse -- reflected in the policies of Congress and myriad school boards, including [that of Juneau-Douglas High School] -- allow schools to restrict student expression that they reasonably regard as promoting illegal drug use."

One objection to this conclusion is: Who knows what the banner was promoting? As Justice John Paul Stevens wrote in his dissent: "To the extent the court independently finds that 'Bong Hits 4 Jesus' objectively amounts to the advocacy of illegal drug use -- in other words, that it can most reasonably be interpreted as such -- that conclusion practically refutes itself. This is a nonsense message, not advocacy."

A more serious objection concerns the chief justice's expansion of the kinds of speech that can be restricted in school. As Justice Stephen G. Breyer noted, the fact that illegal drugs are harmful to students is not a sufficient explanation for banning a broad category of campus expression. The same reasoning can apply to any number of contentious issues. In addition, Mr. Roberts's language suggested that the stated policies of local school boards or other relevant governmental entities should determine in part whether expressing a particular view is permissible at school. Two members of the majority -- Justices Samuel A. Alito Jr. and Anthony M. Kennedy -- explicitly rejected that argument in a concurring opinion, so the court's decision did not enshrine it. But the principle is nonetheless disturbing and, if applied in different cases later, has the potential to shut down student speech on a range of controversial subjects.

Issues of drug use and drug policy are matters of serious contention. High school students must be able to debate them frankly -- and that might even involve students taking the position that bong hits are not that bad.