Saving Free Speech and Jesus


“Virtually any student speech that school officials find controversial or offensive
hangs in the balance on how the Supreme Court decides ‘Bong Hits 4 Jesus.’ “

David Hudson, First Amendment Center, Vanderbilt University, American Bar Association’s “March Preview” of Supreme Court cases

In the long, embattled history of student free-speech cases, what makes the Deborah Morse, Juneau School Board v. Joseph Frederick case startlingly unique is the number of conservative and religious organizations supporting Joe Frederick’s First Amendment right to unfurl his banner “Bong Hits 4 Jesus.”

Among his allies are the Christian Legal Society, Pat Robertson’s American Center for Law and Justice, the high-powered Alliance Defense Fund, and John Whitehead’s Rutherford Institute, the nation’s most active litigator for free exercise of religion—and also a persistent critic of the administration’s war on the Bill of Rights.

On the side of high school principal Morse and the Juneau Board of Education are, of course, the national associations of school boards, secondary-school principals, and school administrators.

Why have the religious and conservative groups become comrades, in this case, of the ACLU, Student Press Law Center, and Feminists for Free Expression? The reason is that the core of the “Bong Hits 4 Jesus” case is not the famous Tinker decision in 1969 in which the court ruled that student free speech can be censored only if it disrupts school activities or violates the rights of others.

The John Roberts Supreme Court is essentially dealing with a later, much more restrictive Supreme Court decision (Hazelwood School District v. Kuhlmeier, 1988) that gives principals and school boards the power to censor any student speech that is contrary to the “basic educational mission of the school”—as defined by each public school principal and school board in the country.

Also likely to be affected by “Bong Hits 4 Jesus” is the college student press, because a recent Seventh Circuit Court of Appeals ruling in the Hosty case applied the Kuhlmeier standard to colleges as well as secondary schools. The Supreme Court refused to review that
Hosty decision, which means it can be referred to as a supportive precedent by other circuit courts.

The conservative and religious groups are concerned with this case because if the Roberts Court uses Kuhlmeier against “Bong Hits 4 Jesus,” as Jacob Sullum notes in the New York Post, “where does that leave students who condemn abortion or homosexuality, question evolution, or insist on the importance of Holy Scripture in resolving moral issues”? A “politically correct” principal or school board could decide that these student-ignited controversies interfere with “the basic educational mission” of that particular school.

In the March 19 oral arguments at the Supreme Court, Kenneth Starr, the lawyer for the principal and the school board in the “Bong Hits 4 Jesus” case, began by unfurling the
Kuhlmeier standard:

“Illegal drug use and the glorification of the drug culture are profoundly serious problems for our nation,” Starr argued, and if the court gives First Amendment protection to the banner, school anti-drug policies around the country—and like that of Juneau High School—would be undermined.

Justice Anthony Kennedy, often a First Amendment supporter—and a likely swing vote if there’s a 5-4 decision—gladdened Starr by stating that Joe Frederick’s banner “was completely disruptive of the theme that the school wanted to promote.”

And Chief Justice Roberts chimed in: “I thought we wanted our schools to teach . . . something besides just basic elements . . . including character formation. . . . Can’t the school decide that it’s part of its mission to prevent its students from using drugs?”

Justice Stephen Breyer (who often tends to speak as if everyone else is a student and he is the professor) even questioned whether First Amendment law need apply in this case. Astonishingly, Breyer said: “I don’t think [the principal] has to be able to read [such First Amendment standards] as content discrimination, viewpoint discrimination, time-place [context]. The principal doesn’t know the law. His job is to run the school.” (Emphasis added.)

When a Supreme Court justice declares that a public school principal has no obligation to know the law of the First Amendment before deciding whether or not to censor student speech, his respect for the very idea that students have First Amendment rights is so low that he should have recused himself from this case.

Justice David Souter felt it was necessary to go back to the 1969 Tinker decision and its rule that student speech was not protected if it caused disruption in school matters. That still remains one of the criteria even under Kuhlmeier. Souter asked where Joe Frederick’s banner actually caused disruption—unless, he pointedly added, “disruption simply means any statement of disagreement with a position officially adopted by the school.” I think we can count on Souter to affirm the First Amendment.

James Madison, who wrote the First Amendment, would have been heartened by the clear, firm perspective of Justice Samuel Alito in this case. I have been critical of Alito’s views of the Fourth Amendment and other criminal- justice constitutional issues. But as he demonstrated when he was on the Third Circuit Court of Appeals, Alito knows why the First Amendment had to be added to the 1787 Constitution four years later.

Responding to the argument that a school can cut off student speech that is inconsistent with its “basic educational mission,” Alito said: “I find that a very, very disturbing argument because schools . . . can [thereby] define their educational mission so broadly that they can suppress all sorts of political speech expressing fundamental values of the students [that the principals judge to be] inconsistent with their educational missions.” Raise a glass to Sam Alito!

In circulating his opinion among his fellow justices, I hope Alito will remind them that Joe Frederick was intentionally across the street from his high school, and that even in the otherwise restrictive Kuhlmeier decision, that court recognized that “the government could not censor [student speech] outside the school”—including “streets, parks, and other traditional public forums that time out of mind, have been used for . . . communicating thought between citizens discussing public questions.”

Joe Frederick and his banner were on a public street across from the school. If this court fails the First Amendment on other counts in this case, at least students won’t be entirely gagged when they’re away from school. But inside schools, maybe Sam Alito can save free speech—including about Jesus, pro or con.

Joe is now a high school English teacher in China. He sure is needed there.