Supreme Court hears oral arguments in ‘Bong Hits 4 Jesus’ case

WASHINGTON, D.C. — The U.S. Supreme Court heard oral arguments today in its first student expression case in nearly 20 years, a case involving a high school student who was suspended for displaying a banner that read “Bong Hits 4 Jesus” across the street from his high school.

Hundreds of people stood in the public line to attend the arguments, including high school and colleges students, instructors, parents and advocates. Members of Students for Sensible Drug Policy, an organization that promotes responsible drug policy and filed a friend-of-the-court brief in the case, protested outside holding signs that read “Students 4 Free Speech” and chanting, “Teachers should teach, not limit free speech.”

Joseph Frederick, then an 18-year-old senior, held up the sign across the street from Juneau-Douglas High School during the 2002 Olympic Torch Relay in Juneau, Alaska. The banner was subsequently ripped from his hands by high school Principal Deborah Morse. Morse protested that the drug reference on the banner was in violation of the school’s anti-drug policy.

In its one-hour session, the justices challenged the attorneys with questions clarifying the terms and focus of the case.

Former Whitewater Special Prosecutor Kenneth Starr, who represented Morse and the school district, defined the case as an issue of drug endorsement by a student at school, stating that his message was a “glorification of drug culture.” Starr also supported the need for restriction of Frederick’s expression based on the precedent set by the 1969 U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District.

Tinker involved students that were censored for wearing black armbands to school in protest of United States involvement in the Vietnam War. The Tinker ruling stated that student speech is protected as long as it is not substantially disruptive to school activities and does not infringe upon the rights of other students.

Starr said that he encouraged the court to look at the Tinker case and other Supreme Court decisions that permit school officials to promote “civility and citizenship” among students, but also to prevent any expression that opposes “fundamental messages” of the school. He said that Frederick’s message was interpreted as a drug endorsement by the school principal.

Associate Justice David Souter shot back, questioning as to how exactly the message was disruptive.

“It’s political speech,” Souter said. “I don’t see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school.”

Associate Justice Ruth Ginsburg agreed, stating that Frederick’s message, though alluding to drugs, could be interpreted as an anti-drug message or just “nonsense.”

Associate Justice Antonin Scalia added that a banner is “clearly disruptive” to the teaching process, but also that the term “disruptive” needs to be defined in reference to context and the message.

In his argument, Frederick’s attorney, Douglas Mertz, said that Frederick’s non-disruptive free speech is the focus for the case and that Frederick was not attempting to “undermine” the learning process of the school.

Scalia rebutted, stating that the context of Frederick’s message is of great importance because “a school isn’t an open forum,” but a place for “teachers to instruct.”

Starr argued that although Frederick was not present at the beginning of school that day, that the event was school-sponsored, akin to a field trip, and that education does not only occur in the classroom, but in museums and other places of learning.

Mertz argued that despite the context in which the speech occurred, it was not disruptive of the educational environment.

In response to the information presented, Justice Stephen Breyer said that the decision in this case could be compromising if decided either way. He said that if the court rules in favor of Frederick, he is worried that students would be “testing the limits” of their right to free expression, but a ruling in favor of the school district might be “too broad” in its restriction over student speech.

After the arguments in comments outside the Court building, Starr said that as a society, we need to recognize that school officials have jurisdiction over the education of their students, whether or not it takes place in the physical classroom.

Mertz also said a societal realization must occur, but in reference to the need for free speech protection.

“We came here to the Supreme Court because we had a deep concern about what the argument on the other side might do to free speech in this country for many, many thousands of American citizens who could be at risk of being punished for simply disagreeing with a public school official,” Mertz said.

Mertz said he is pleased to already see a diverse convergence of supporters, referring to the friend-of-the-court briefs filed on behalf of Frederick’s claim, which included the Student Press Law Center.

“The amazing thing to me about this case is the outpouring of support of free speech across the country and our own community in Alaska, and particularly the outpouring of support all across the political spectrum from the far right to the far left and everywhere in between,” Mertz said. “Free speech is a true core American value that everyone believes in and we’re hoping that includes the members of this court.”

By Erica Hudock, SPLC staff writer

Frederick v. Morse, 439 F.3d 114 (2006), cert. granted, 2006 WL 2503545, No. 06-278 (Dec. 1, 2006).

  • Read the transcript of Supreme Court oral arguments
  • Read the 9th U.S. Circuit Court of Appeals’ decision
  • Twenty-three organizations file briefs with Supreme Court in ‘Bong Hits 4 Jesus’ case News Flash, 4/9/2007
  • Supreme Court will hear ‘Bong Hits 4 Jesus’ case News Flash, 12/5/2006
  • Supreme Court urged to review ‘Bong Hits 4 Jesus’ case News Flash, 9/7/2006
  • Suspension for ‘Bong Hits 4 Jesus’ poster violated student’s rights, court says News Flash, 3/15/2006
  • U.S. appeals court hears case of Alaska student punished for off-campus speech News Flash, 7/12/2004