Washington 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.