Joe Frederick, First Amendment Idol


“In our system, students may not be regarded as closed-circuit recipients of only that which the State wishes to communicate. They may not be confined to expression of those sentiments that the State officially approved. Supreme Court, Tinker v. Des Moines Independent Community School District , 1969

“That boards of education are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount principles of our government as mere platitudes. Supreme Court, West Virginia State Board of Education v. Barnette, 1943

We are in a time when many Americans are far more knowledgeable about Anna Nicole Smith than about the Bill of Rights—its contents and its future as the Constitution keeps shrinking. For example, do you know each of the five freedoms listed in the First Amendment?

But during this perilous indifference to why and how we are Americans, a young citizen in Juneau, Alaska—Joe Frederick—is becoming a model to Americans of all ages on how to live the First Amendment. Even before his current battle with his high school principal and the Juneau school board came before the Supreme Court on March 19, Frederick, earlier in his school years, had been threatened with suspension for refusal, on First Amendment grounds of conscience, to stand and pledge allegiance to the flag.

As Justice Robert Jackson said for the Court in a 1943 school-suspension pledge-of-allegiance case (West Virginia State Board of Education v. Barnette):

“No official, high or petty, can prescribe what shall be orthodox politics, nationalism, religion, or any other matters of opinion, or force citizens to confess by word or act their faith therein.” Those words should be on a laminated card in the pockets of every principal, school board member, and FBI agent in the country.

By this June, the John Roberts Supreme Court will have ruled on whether the First Amendment protects Joe and his unorthodox banner, along with much other student speech around the country.

The case of “Bong Hits 4 Jesus” is Deborah Morse, Juneau School Board v. Joseph Frederick.

I recognize that what the justices say during oral arguments does not necessarily predict the outcome of a case; but the comments on March 19—particularly by Chief Justice John Roberts and the current swing voter, Anthony Kennedy—could lead a majority of the court to gravely limit the free-speech and free-press rights of public school students (including at public colleges) for many years.

Having covered student press wars around the country for the Voice and for my books on the Bill of Rights, I’ve found that those students who become most actively and durably passionate about the First Amendment have worked on school newspapers embroiled in these press wars with principals and school boards. Most other students are indifferent.

If this Supreme Court muzzles the current and future generations of these First Amendment student warriors, even most subsequent American adults will be indifferent to the First Amendment—from which all our other liberties flow. My rites of passion on this issue began when I was fired as the editor in chief of my college paper, the Northeastern News in Boston, for enraging Northeastern University’s president by fomenting controversy. In the introduction to my book The First Freedom: The Tumultuous History of Free Speech in America (1980), I credited school president Carl Ell for inspiring me to embrace the Constitution.

Supported by the ACLU, Joe Frederick’s odyssey to the Supreme Court began five years ago, when he was 18, a senior in high school. The 2002 Olympic Torch Relay was scheduled to pass by the school. Across the street, Joe unfurled a 14-foot banner: “Bong Hits 4 Jesus.”

What was the message? He was having fun, he says, and calling attention to himself and maybe getting on television. “It was certainly not intended as pro-drug or religious,” he recently told Nina Totenberg on National Public Radio. “I conveyed this to the principal by explaining that it was intended to be funny, subjectively interpreted by the reader, and most importantly, an exercise of my inalienable right to free speech.”

The principal, Deborah Morse, is praised by her attorney in this Supreme Court case, Kenneth Starr (yes, the Kenneth Starr, of Clinton impeachment fame) as a “lifelong educator” deeply concerned with the anti-drug message—and mission—of her school.

Seeing Joe Frederick’s banner, this lifelong educator rushed across the street and ordered him to take it down. Undaunted, the student cited his First Amendment rights, whereupon the principal grabbed the banner, mashed it to the ground and, on the spot, suspended Joe for five days for—as she and the school board claimed—promoting drug use and thereby violating the school’s basic educational mission.

Still not intimidated by this dedicated educator, Joe brought Thomas Jefferson and his Declaration of Independence into the conversation to defend the banner. In fiery response, Deborah Morse immediately doubled the suspension.

I know Kenneth Starr, having interviewed him often in the Clinton years and later when he volunteered to teach the Constitution at a “disadvantaged” Washington, D.C., high school. Having read his book First Among Equals: The Supreme Court in American Life (2002), I am not surprised that he eagerly took this case on behalf of the principal and the school board. He’s doing it pro bono. As he writes in the book, he argued the government’s case as solicitor general at the Supreme Court against the free-speech rights of flag burners. He lost 5 to 4.

Next week: Starr’s skillful strategy during oral arguments in Morse
v. Frederick, which came to the court of final judgment after the Ninth Circuit Court of Appeals upheld Joe Frederick’s First Amendment right to unfurl “Bong Hits 4 Jesus.”

Worth noting: At an early point in this case, as NPR’s Totenberg reported, “Joe Frederick and his father offered to settle the case if the school put on an assembly at which students would hear from an ACLU representative and a school board official explaining what student rights are.”

The Juneau School Board refused what would have been a memorable teaching moment for the students, faculty, and school board. It is now up to the Roberts Court to either support Joe Frederick or flunk the First Amendment for what could be at least a generation. The court will focus on whether any student speech that violates “a school’s basic mission” can be forbidden. Each school would decide that for itself.