‘Bong Hits 4 Jesus’: Protected speech?

Chances are that when 18-year-old Joseph Frederick held up a 14-foot long banner reading “Bong Hits 4 Jesus” in 2002, he didn’t anticipate a run-in with the Supreme Court. But Frederick, who was a senior at Juneau-Douglas High School in Juneau, Alaska, probably also didn’t anticipate that the school’s principal, Deborah Morse, would accuse him of promoting drug use and suspend him for 10 days. Frederick sued Morse and lost at the district level, but he won in the 9th U.S. Circuit Court of Appeals. Morse, with the support of the school board, brought the case to the Supreme Court, which deliberated on the subject last Monday.

Frederick claimed that he was only exercising his right to free speech. The school argued that it had the right to punish students whose free speech promotes illegal activity or interferes with school policies. Morse accused Frederick of promoting the use of illegal drugs, an action which she claimed both advertised illegal activity and went against the school’s anti-drug policy.

Frederick was not standing on school property when he held the banner above his head; however, the incident occurred at a school-sponsored event, which allowed Morse to claim that Frederick was technically in school at the time. As a result, Morse claimed that Frederick was under the school’s jurisdiction and therefore subject to the school’s consequences.

The school proceeded with Frederick’s punishment under the assumption that once the bell rings, the school’s values trump those of the student, even when that student is not physically present on school property.

Students’ personal values will affect them much more significantly than the values of their high schools or colleges will. Take the 1969 landmark case Tinker v. Des Moines Independent Community School District, which ruled that a high school’s suspension of three students for wearing black armbands in protest of the Vietnam War was unconstitutional. The court stated that, according to the First Amendment, a public school could not punish a student for peacefully protesting unless it had evidence that the action substantially interfered with school policies or the rights of others.

The Supreme Court will decide if the Tinker ruling can be applied to Morse v. Frederick, deciding ultimately if pro-drug legalization statements can be prohibited by school districts.

Frederick’s banner, however, was not pro-drug legalization; it was not pro-anything. Its message did not even include a verb, and therefore cannot be said to have instructed students to do anything. On the other hand, the sign did draw students’ attention to illegal activity.

The statement was, if anything, a harmless joke more for the benefit and amusement of Frederick himself than anyone else. Nothing in the sign’s content suggested that its readers take a particular action, legal or illegal.

Based on its own personal beliefs, the school’s administration took the course of action that it felt was ethical. It failed to take into account the rights and beliefs of the student in question as well as those of his fellow students and their parents, but hopefully the Supreme Court will not make that same error. It should err, as always, on the side of free speech.

Supreme Court Justice Breyer perfectly articulated the difficulty of this case: “I guess what I’m worried about is a rule ... that takes [the defendant’s] side; we’ll suddenly see people testing limits all over the place in the high schools. But a rule that [is] against your side may really limit people’s rights on free speech. That’s what I’m struggling with.” We hope the court remembers that this country (and our educational system) is founded upon the notion of testing limits. That is how our society grows and develops. The Supreme Court should uphold this important value.