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Archive for Sunday, July 1, 2007

Banner crosses constitutional line

July 1, 2007

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— In January 2002, in Juneau, Alaska, Joseph Frederick had the sort of idea that makes a teenager seem like one of nature's mistakes. Last week, after five years and the attention of 13 federal judges, Frederick became a footnote in constitutional history.

His case illustrated how the multiplication and extension of rights lead to the proliferation of litigation. It also illustrated something agreeable in a disagreeably angry era - how nine intelligent, conscientious justices can civilly come to strikingly different conclusions about undisputed facts.

This story actually began in 1965, in Des Moines, Iowa, when three teenagers wore to school black armbands to protest the Vietnam War. Their school said the bands or the students must go. The students kept the bands, were suspended, sued and won a 7-2 Supreme Court victory in 1969. The court said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." One of the dissenting justices was Hugo Black, a fierce proponent of First Amendment rights who nevertheless warned that the decision denied schools "the power to control pupils."

Thirty-three years later, at a school-sanctioned and faculty-supervised event during normal school hours, students were watching the Olympic torch pass through Juneau en route to the 2002 Winter Olympics in Utah. Frederick and some friends, standing on a public street across from their school, unfurled a banner reading "Bong Hits 4 Jesus." The school's principal read that as endorsement of, even advocacy of, an illegal act (marijuana use) in violation of the school's stated policy and educational mission. She ordered Frederick and his friends to take the banner down. Frederick refused and was suspended from school for 10 days.

He sued, claiming his First Amendment free speech rights were violated. A district court ruled against him, but a three-judge panel of the 9th U.S. Circuit Court of Appeals - the court most often reversed by today's Supreme Court - sided with him unanimously.

Although accepting that the banner was at a school event and endorsed drug use, the panel held that Frederick's rights had been violated because there was no finding that his speech threatened a substantial disruption of the school. Last week, the Supreme Court disagreed, 5-4.

Chief Justice John Roberts, joined by Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, noted that in 1986 the court, in a case arising from "lewd and indecent" student speech, did not conduct a "substantial disruption" analysis. Instead, that court held that, "in light of the special characteristics of the school environment," the rights of students "are not automatically coextensive with the rights of adults in other settings." And in another case, the court has recognized an "important - indeed, perhaps compelling" public interest in deterring drug use by children.

In concurring opinions, Thomas and Alito took strikingly different positions. Thomas said that nothing in the history of public education or the original understanding of the First Amendment suggests that students have any justifiable First Amendment rights. To confer constitutional protection on Frederick's "impertinence" would, Thomas said, be "farcical."

Alito, joined by Kennedy, stressed that in ruling against Frederick the court was condoning only restriction of speech advocating illegal drug use, and that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." Alito seemed to share Thomas' view that Frederick's banner was less advocacy than "impertinence."

Stevens, dissenting and joined by David Souter and Ruth Bader Ginsburg, argued, plausibly, that Frederick's "nonsense banner" with its "oblique reference to drugs" hardly constituted "promoting" drug use, or advocacy with likely and "feared" consequences. One wonders: How does Stevens square this admirable First Amendment fastidiousness with his tolerance of McCain-Feingold's gross restrictions on the sort of speech that amendment's authors most valued - political advocacy?

Stevens, who in 32 years on the court has seen enough to know that one has never seen everything, mischievously wondered whether the majority justices would have allowed Frederick's punishment if his offense had been a banner reading "Wine Sips 4 Jesus," which could be read as advocating alcohol use but also as - communion wine? - "a protected religious message."

Somewhere, a teenager with an abnormal interest in the court and a normal zest for mischief might be thinking: Cool idea, Justice Stevens - I'll create a banner to test whether banning "Wine Sips 4 Jesus" would infringe my religious freedom. Endless distinctions can - actually, must - be drawn once a subject becomes a matter of constitutional litigation.

- George Will is a columnist for Washington Post Writers Group.

Comments

Crossfire 7 years, 6 months ago

Maybe The Junior Judges would like: .:':.Bong Hits 4 Segregation.:':. . . . . . . . . .better. . . . . . . .

Crossfire 7 years, 6 months ago

The students in Tiananmen Square had no rights.

jonas 7 years, 6 months ago

"Thomas said that nothing in the history of public education or the original understanding of the First Amendment suggests that students have any justifiable First Amendment rights."

It didn't say, "except for students," did it?

All the same, what a dumb kid. Take your suspension and live with it. It's not like you got expelled or anything. At a school event, you're not in full control, the school is, and it can dictate what it expects, within certain limits. Illegal activities should be included within those limits.

Still, Wine sips for Jesus might be an interesting experiment. . . . Too bad I don't know anyone in high-school.

jonas 7 years, 6 months ago

Crossfire: Well, they did have the right to get out of the way and flee. Not that that's saying much.

average 7 years, 6 months ago

I think the reasoning that this promoted drug use is questionable. It's equally a statement that permitting "bong hits" (i.e. legalizing or decriminalizing cannabis) would be a Christian act (by not imprisoning hundreds of thousands of non-violent partakers and destroying millions of families). I've never used, don't plan to use, and think the law needs to be changed.

Demonstrating for a change in the law is okay, unless it's changing the drug laws. Those are apparently sacred.

jonas 7 years, 6 months ago

Nope. But it's understood, I believe, that there is a gray area between open free-for-all of expression and a total lack of any rights. You do understand, right, what I mean about a gray area? As in, an area that is not either black or white? You've heard of those before?

By the way, answer the question. Does it say in the first amendment "except for students?"
Damned activist judges, with their free extensions and interpretations of the constitution.

Crossfire 7 years, 6 months ago

...drug laws. Those are apparently sacred.

The war on drugs was declared not to stop drugs. It was to instill fear. And to separate our nation. In the future banners, even silly ones, will not be allowed along the motorcade. If a student can be suspended then a worked could be fired.

Jamesaust 7 years, 6 months ago

"Alito, joined by Kennedy, stressed that in ruling against Frederick the court was condoning only restriction of speech advocating illegal drug use, and that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." Alito seemed to share Thomas' view that Frederick's banner was less advocacy than "impertinence."

So .... if the kid's banner was less in jest and said something like "I Demand Legal Drugs Now!" then it would have been okay because that is a "political or social issue"? In other words, instead of being serious later by suing, the kid should have been serious from the first moment and then he could have gotten away with anything.

I would think that a fair number of "conservative" individuals would be quite troubled by this ruling. You send your kids to school where they are indoctrinated by a host of "lefty" political and social doctrines - one-world government, 'gays okay,' various forms of political correctness, the virtue of dependence on government, etc. - and if your kids speak up - "The U.S. must remain sovereign" or "The Bible says homosexuality is a sin" - then they're risking suspension from school for the "impertinence" of objecting to a "compelling governmental interest."

Frank Smith 7 years, 5 months ago

We have a Supreme Court majority who will condone almost any nonsense coming from the White House, but a Juneau kid's intentionally foolish banner, off school premises, is worthy of solemn deliberation and infringement of 1st Amendment rights. The drug war has put over a million largely harmless people in prison at immense cost to the taxpayers, but even joking about it is worthy of sanction. Continuing with the compartmentalization, right wingers think it's okay to use CIA planes to backhaul cocaine from Columbia if the outbound trip contains illegal weapons for Contras in Honduras or El Salvador. On the other hand, if a otherwise terminally ill patient in California, Alaska, Oregon, etc., can survive starvation or allieviate excruciating pain, then Justice Department involvement is condoned and the hell with the 14th Amendment and local control.

If the kid had raised a banner that read: " AK-47s for Jesus," the Supremes would have ruled 9-0 in his favor. The farcical five just love that NRA interpretation of the 2nd Amendment, don't they?

Jamesaust 7 years, 5 months ago

"right wingers think it's okay to use CIA planes to backhaul cocaine from Columbia if the outbound trip contains illegal weapons for Contras in Honduras or El Salvador."

O.G.! Flashbacks to Cyndi Lauper, Pet Shop Boys, Nuclear Winter and Walter Mondale. Please, I had just forgotten Leonid Brezhnev's ugly mug.

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