Students and free speech

March 21, 2007

It's probably fair to say that if school authorities in Juneau, Alaska, had kept cooler heads, the odd case of a high school student who was suspended for holding an irreverent banner on a public sidewalk might not have developed into a major free speech case before the U.S. Supreme Court. In oral argument Monday, some of the justices raised troubling questions suggesting a willingness to narrow student free speech rights. This should not be a hard case that makes bad law.

In 2002, Joseph Frederick, an 18-year-old senior, and other students at Juneau-Douglas High School had been excused from class to watch the Olympic torch relay as it moved through the city. Mr. Frederick, who says he wanted to test his First Amendment rights and get on television, stood on a corner across the street from the school and, with some friends, held a banner that said "Bong Hits 4 Jesus" as the torch came near. The principal suspended him, in part for violating the school's policy against public expression advocating illegal drug use and in part for invoking his First Amendment rights. The punishment was upheld by the superintendent and the school board.

Mr. Frederick continued his fight in federal court, relying heavily on a 1969 Supreme Court precedent, Tinker v. Des Moines Independent Community School District, that students don't give up their free speech rights in school, unless the speech is disruptive. Even though this incident occurred off-campus, school authorities foolishly tried to treat the event like a class trip, subject to school rules. They conceded, however, that the banner display did not disrupt classroom work, and there were no complaints that it promoted drug use.

At the Supreme Court this week, Kenneth W. Starr, representing the school authorities, tried to make the outlandish case that a pro-drug message such as Mr. Frederick's should be viewed as an exception under Tinker and, therefore, not protected speech. It's downright frightening that in questions during oral argument, some of the justices, including John G. Roberts Jr. and Anthony M. Kennedy, seemed to buy into his cramped formulation of acceptable student speech.

Mr. Frederick's action probably should have provoked a serious school debate about drug use, the parameters of free speech - and the dangers of its infringement. Instead, it's now up to the Supreme Court to teach a more powerful lesson - by upholding the established First Amendment rights of Mr. Frederick and his peers.

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