Landmark 'Bong hits' case ends after parties agree to settlement

ALASKA — After nearly seven years of litigation, including adecision from the U.S. Supreme Court, the high school free speech battle knowninformally as “Bong Hits 4 Jesus” is over.

According to a press release by the American Civil Liberties Union ofAlaska, both parties settled all claims, including $45,000 to be paid to formerstudent Joseph Frederick. Of that amount, $25,000 will come from the City andBorough of Juneau. The remaining amount will be paid from the schooldistrict’s insurer. Frederick’s actions punished by the school wereexpunged from his official school records, as well.

The informal moniker, “Bong Hits 4 Jesus,” refers to thelandmark First Amendment case that reached the U.S. Supreme Court in 2007.Frederick later said he intended for the message, which he saw on a bumpersticker, to be “a little bit controversial” and “absurdlyfunny.”

Crosby said the settlement became official once the school board agreed toits terms Nov. 3 at a school board meeting and it was settled because it wouldhave cost the school district more time and money to argue its side.

“It would cost us less to settle the case for $45,000 than it wouldto litigate the claim,” Crosby said. “Since we already have theUnited States Supreme Court decision vindicating the policies, we didn’tfeel that it was necessary to litigate the State Supreme Courtissue.”

Frederick, then an 18-year old senior at Juneau Douglas High School,unfurled a 14-foot banner during the running of the U.S. Winter Olympic torchrelay in 2002, in which a school principal saw the phrase. Deborah Morse, theprincipal at the time, suspended Frederick for what she believed to be a prodrug-related message. The Supreme Court ruled in Morse v. Frederick in2007 that speech while at a school-sponsored event could be censored ifconsidered drug-related. An issue in the case was whether Frederick was actuallyat a school-sponsored event when he unfurled his “Bong Hits 4 Jesus”

banner on a public sidewalk and whether the phrase was a pro-drug message, or ifit had any comprehendible message at all. On both questions, the court’sanswer was yes.

“Rather than wait for a decision by the 9th Circuit and then possiblecontinuing litigation to go on in state courts or by the federal court reviewingthe state claims, the parties have agreed that there will be a settlement andthat those claims will be set aside in this matter,” ACLU ofAlaska’s Jeffrey Mittman said.

Crosby said the lawsuit had been a contentious issue that took an enormousamount of resources.

Not only did the case take time and money, “but it has been verydistracting to the school administrators,” Crosby said.

“Periodically the public gets all riled up and we have editorials and wehave people writing letters to the editor and what have you.”

Mittman said the issue of how broadly the U.S. and the Alaska Constitutionprotects the right to free expression will eventually come up in Alaskaagain.

“The ACLU believes the founding fathers intended that those rightsshould be as broadly construed as possible. For whatever reason, the schoolboard took a different position on this issue,” Mittman said. “But,we know that these issues come up time and again, and we will continue tolitigate them whenever they arise.”

Douglas Mertz, Frederick’s attorney, did not return phone calls bypress time.