U.S. appeals court hears case of Alaska student punished for off-campus speech

ALASKA — A federal appeals court heard arguments last week in the case of a former high school student who was given a 10-day suspension by his school for displaying a controversial poster at an event off school grounds.

On July 9, Douglas Mertz, an attorney representing Joseph Frederick on behalf of the American Civil Liberties Union of Alaska, argued that a lower court was wrong to uphold the Juneau School District’s decision. The school did not have the authority to regulate student speech off school grounds at an event not sponsored by the school, he said.

The case involves a banner that read “Bong Hits 4 Jesus.” Frederick held the banner during a parade featuring the Olympic torch as it traveled through Alaska in 2002.

If the U.S. Court of Appeals for the Ninth Circuit upholds the ruling, schools in nine Western states could be given greater license to punish students for expression off school grounds for activity that the school has policies against, such as the Juneau district’s anti-drug policy.

Mertz said he felt optimistic about the outcome of the case based on the questions the judges asked during oral arguments, but he did not expect a ruling for several months. Some of the questions included, why was the case analyzed as a student speech issue when it occurred off campus, and how could the school’s objection to the speech be based on the specific content of the banner, Mertz said.

“A small difficulty [with the appeal] could be that some people might see the student’s speech as not of particularly high importance,” said Sonja West, an attorney at the law firm Davis Wright Tremaine, who helped author a friend-of-the-court brief supporting Frederick on behalf of several media groups, including the Student Press Law Center. “The law the district court tried to follow could have been applied to political messages, religious messages or any individual art or student message. This is what we were really concerned about.”

The district court ruled in May 2003 that the then-high school senior’s speech was not protected because “Frederick’s expression directly conflicted with the school’s deterrence of illegal drug use.”

View the friend-of-the-court brief filed by the SPLC and other media organizations in Frederick v. Morse.