Free-Speech Case Divides Bush and Religious Right

Free-Speech Case Divides Bush and Religious Right

By LINDA GREENHOUSE
Published: March 18, 2007
WASHINGTON, March 17 — A Supreme Court case about the free-speech rights of high school students, to be argued on Monday, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right.

As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.

On the surface, Joseph Frederick’s dispute with his principal, Deborah Morse, at the Juneau-Douglas High School in Alaska five years ago appeared to have little if anything to do with religion — or perhaps with much of anything beyond a bored senior’s attitude and a harried administrator’s impatience.

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Mr. Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

Mr. Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, “to be meaningless and funny, in order to get on television.” Ms. Morse found no humor but plenty of meaning in the sign, recognizing “bong hits” as a slang reference to using marijuana. She demanded that he take the banner down. When he refused, she tore it down, ordered him to her office, and gave him a 10-day suspension.

Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the court’s student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick, No. 06-278. What is most striking is how the two sides line up.

The Bush administration entered the case on the side of the principal and the Juneau School Board, which are both represented by Kenneth W. Starr, the former solicitor general and independent counsel. His law firm, Kirkland & Ellis, is handling the appeal without a fee. Mr. Starr and Edwin S. Kneedler, a deputy solicitor general who will present the government’s view, will share argument time on Monday. The National School Board Association, two school principals’ groups, and several antidrug organizations also filed briefs on the school board’s side.

While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.

The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”

The institute, based in Plano, Tex., told the justices in its brief that it was “gravely concerned that the religious freedom of students in public schools will be damaged” if the court rules for the school board.

Lawyers on Mr. Frederick’s side offer a straightforward explanation for the strange-bedfellows aspect of the case. “The status of being a dissident unites dissidents on either side,” said Prof. Douglas Laycock of the University of Michigan Law School, an authority on constitutional issues involving religion who worked on Liberty Legal Institute’s brief.

In an interview, Professor Laycock said that religiously observant students often find the atmosphere in public school to be unwelcoming and “feel themselves a dissident and excluded minority.” As the Jehovah’s Witnesses did in the last century, these students are turning to the courts.

The briefs from the conservative religious organizations depict the school environment as an ideological battleground. The Christian Legal Society asserts that its law school chapters “have endured a relentless assault by law schools intolerant of their unpopular perspective on the morality of homosexual conduct or the relevance of religious belief.”

The American Center for Law and Justice brief, filed by its chief counsel, Jay Alan Sekulow, warns that public schools “face a constant temptation to impose a suffocating blanket of political correctness upon the educational atmosphere.”

What galvanized most of the groups on Mr. Frederick’s side was the breadth of the arguments made on the other side. The solicitor general’s brief asserts that under the Supreme Court’s precedents, student speech “may be banned if it is inconsistent with a school’s basic educational mission.”

The Juneau School Board’s mission includes opposing illegal drug use, the administration’s brief continues, citing as evidence a 1994 federal law, the Safe and Drug-Free Schools and Communities Act, which requires that schools, as a condition of receiving federal money, must “convey a clear and consistent message” that using illegal drugs is “wrong and harmful.”

Mr. Starr’s main brief asserts that the court’s trilogy of cases “stands for the proposition that students have limited free speech rights balanced against the school district’s right to carry out its educational mission and to maintain discipline.” The brief argues that even if Ms. Morse applied that precept incorrectly to the facts of this case, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.

The religious groups were particularly alarmed by what they saw as the implication that school boards could define their “educational mission” as they wished and could suppress countervailing speech accordingly.

“Holy moly, look at this! To get drugs we can eliminate free speech in schools?” is how Robert A. Destro, a law professor at Catholic University, described his reaction to the briefs for the school board when the Liberty Legal Institute asked him to consider participating on the Mr. Frederick’s behalf. He quickly signed on.

Having worked closely with Republican administrations for years, Mr. Destro said he was hard pressed to understand the administration’s position. “My guess is they just hadn’t thought it through,” he said in an interview. “To the people who put them in office, they are making an incoherent statement.”

The solicitor general’s office does not comment publicly on its cases. But Mr. Starr, by contrast, was happy to talk about the case and the alignment against him of many of his old allies. “It’s reassuring to have lots of friends of liberty running around,” he said in a cheerful tone, adding: “I welcome this outpouring because it will help the court see that it shouldn’t go too far either way.”

We cannot teach our children about our nation or how to be citizens in an environment of opression... oh wait, I forgot, this is BushCo's United States.
This is a travesty, free speech is free speech. Also the sign did not say to do bong hits for Jesus, it left the message's intent up to the reader.
People need to get a damn sense of humor. If you want to make a statement about the Jesus aspect the answer is separation of church and state, end of story.
It is outstanding to know there is another NFP group out there fighting for freedom of speech!!!

Update

[piercehawkeye45]

This is a touchy issue.

First, about the banner. That guy had every right to do that but he is a douchebag for doing it and you can’t punish him for that. It was off school grounds so the school had no right to punish him.

Now about free-speech in schools. In our school you could pretty much wear anything that was “school appropriate”, which was loosely regulated. If you wore a shirt with a sexually explicit image or if it advertised drugs or alcohol you were told to wear it inside out and that was the end of it.

I think schools should have the right to disallow the advertising of a product that is illegal in the school if it wants too but that is the line. I can easily go both ways with drugs and alcohol with that issue. But anything offensive (racist, homophobic, sexist, pornographic) should be banned since other students can't leave that area and are forced to see the shirt.

[Griff]

Originally Posted by piercehawkeye45

If you wore a shirt with a sexually explicit image or if it advertised drugs or alcohol you were told to wear it inside out and that was the end of it.

Funny sort of related... I recently watched both the new and the original Bad News Bears. In the old one the kids all have a beer after the big game. In the new one the kids have non-alcoholic "beer". In the old one there is a little swearing and in the new one I think the swearing was more frequent. Changing community standards?

[piercehawkeye45]

Morals and ethics always change within a society so I'm not suprised.

[TheMercenary]

This is a techincal matter from a legal standpoint. Some dumb ass reporter is making a mountain out of a mole hill. One side is looking at it as a free speech issue, the other as the right of a principal to deal with issues that he feels adversely affects the students. To bad the students were not at school. The school will lose.

[richlevy]

Another reason to thank GWB.

Court restricts student expression

Washington - A high school principal did not violate the free speech rights of a student when she confiscated a 14-foot prank banner near school grounds during an outdoor school assembly.
In an important First Amendment decision limiting student free speech, the US Supreme Court ruled on Monday that school administrators and teachers retain discretion to censor student speech that they believe may encourage illegal drug use.

The 5-to-4 decision comes in a case involving an Alaska high school student who displayed a banner proclaiming "Bong Hits 4 Jesus."

The nation's highest court said the principal of the high school had the authority to confiscate the banner even though it was being displayed on a public sidewalk across the street from school property.
The decision is important because it somewhat expands the authority of school officials to censor student speech when the students are present at school-sponsored events and the message of the student speech is reasonably viewed as promoting illegal drug use.

In reversing the Ninth Circuit decision, Roberts wrote: "School principals have a difficult job, and a vitally important one. It was reasonable for [the principal] to conclude that the banner promoted illegal drug use – in violation of established school policy – and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use."

F***ing pussies. A useless gesture in the 'war on drugs' in exchange for a piece of the First Amendment. Whatever happened to 'strict constructionists' and 'not legislating from the bench'?

For once, I'm very sorry that Mercenary was wrong about something.

[xoxoxoBruce]

Roberts is an asshole.

[fargon]

When I was a senior in high school I was expelled for 1 day, my crime was participating in a Bible study on campus. Every Wednesday we would gather in the "pit" in front of the office and hold a prayer meeting and bible study. This was at lunch, which was 65 minutes long. Plenty of time to have lunch and do things. Christian and non christian alike would show up and participate. We all enjoyed the fellowship. About a month before the end of the school year we were busted by school administration, with the help of SCPD, when told to disperse most people left, I asked the principle why don't you go bust the dope smokers in the restrooms. I was cuffed and taken to the principles office. Me being 18 years old was told that I was in violation of district policy, and in violation of separation of church and state laws. I was expelled and escorted off campus by the police. I then went to the local Carrow's restaurant and called my parents. they told me to sit and stay, while I was there waiting The boys VP showed up with paper work saying that I was expelled from school and would not be able to enroll in any public school in California. My parents arrived rite then and my mother Gave that turd a tongue lashing that made me wince with pain. We sat for about an hour when my parents lawyer showed up with all the papers drawn up and waiting for my signature. I was going to sue the school, the principle, the police, and the district. In the end I was reinstated the following Monday with full credit we were allowed to hold our bible study, and prayer meeting just like before, and about a third of the student body accepted Christ as their savior. I got $25,000.00 in an out of court settlement. The principle was fired and the police department had to give me a public apology (I'm still waiting for that) I understand that San Clemente High School still has a bible study and prayer meeting every Wednesday in the pit.

[xoxoxoBruce]

If that happened to you today, Bush's Supreme Court would have your ass, not only out of there, probably in Cuba.

[fargon]

Originally Posted by xoxoxoBruce

If that happened to you today, Bush's Supreme Court would have your ass, not only out of there, probably in Cuba.

That is why we have a Second Amendment. I found out 20 years that a concerned parent complained and when she came out to show Dr Taylor what was happening I was standing and reading in the book of John. Because I always read King James it sounded like some Holy Roller to her.

Remember 1 if by land&2 if by sea. Tom Jefferson was correct, and if he was here he would be shot on the capitol steps.
Read my signature line.

Just one more thought before I get to work why are Christians so persecuted? We support the Jews and get hammered for it. We support removing vermin from the gene pool we get hammered for it. We support stamping out terrorism we get hammered for it. We support the traditional American family we get hammered for it, ect. ect., ect.
I could go on for hours, but I won't. Apologies to the Westboro Baptist church you need to read your Bible, God does not hate fags I'm on a rip now I'll come back later after I've used up my mad.

[Spexxvet]

Originally Posted by fargon

That is why we have a Second Amendment. I found out 20 years that a concerned parent complained and when she came out to show Dr Taylor what was happening I was standing and reading in the book of John. Because I always read King James it sounded like some Holy Roller to her.

Remember 1 if by land&2 if by sea. Tom Jefferson was correct, and if he was here he would be shot on the capitol steps.
Read my signature line.

Just one more thought before I get to work why are Christians so persecuted? We support the Jews and get hammered for it. We support removing vermin from the gene pool we get hammered for it. We support stamping out terrorism we get hammered for it. We support the traditional American family we get hammered for it, ect. ect., ect.
I could go on for hours, but I won't. Apologies to the Westboro Baptist church you need to read your Bible, God does not hate fags I'm on a rip now I'll come back later after I've used up my mad.

You're not persecuted. You're being treated like everyone else. So sorry if you don't like it.

This is a hate and violence filled post, IMHO. Doesn't sound Christian to me.

[Happy Monkey]

Originally Posted by fargon

I found out 20 years that a concerned parent complained and when she came out to show Dr Taylor what was happening I was standing and reading in the book of John.

Just an example of two common problems with school administrators - not understanding shades of gray (student-led prayer is OK, school-led prayer is not), and kowtowing to loud parents. Luckily for you, your parents were louder. And, for that matter, correct on the first point as well.

[Happy Monkey]

Originally Posted by fargon

Just one more thought before I get to work why are Christians so persecuted?

A slight diminishment if your special status must be so unpleasant...

We support the Jews and get hammered for it.

Support which Jews doing what? You can't "support the Jews". They aren't a hive mind with a single purpose.

We support removing vermin from the gene pool we get hammered for it.

You've found someone that Jesus wants you to kill, but the government won't let you?

We support stamping out terrorism we get hammered for it.

"stamping out terrorism" is fine, as long as the terms remain hazy. But it isn't a catchall excuse for any and all immoral and illegal activities.

We support the traditional American family we get hammered for it,

I'm gonna go out on a limb here and translate "support the traditional American family" as "make things difficult for gay families". I know that the two concepts are completely unrelated, but I gotta say, I don't think you do.

[richlevy]

Originally Posted by fargon

why are Christians so persecuted? We support the Jews and get hammered for it.

What? Didn't you get my thank you note? Support for Israel by Christians is not 'support for the Jews'. It is an attempt to fulfill prophesy. It's foreign policy's version of creationism. If Israel didn't happen to be sitting on top of the JLZ (Jesus Landing Zone) it would probably be as popular as Darfur.