Friday, March 23, 2007

Student's Free-Speech rights vs Orderly School

Banner used to gain '15 minutes of fame' at parade in Juneau

The Supreme Court heard arguments this week on a case that balances a student's free-speech rights with the rights of a school to control the atmosphere, through limits on student speech, of the school itself. In January of 2002 Joseph Frederick, then a senior at a high school in Juneau, Alaska, unfurled a 14-foot banner near Juneau-Douglas High School proclaiming "Bong Hits 4 Jesus."

Frederick's display of the banner occurred during the relay of the ceremonial torch for the 2002 Winter Olympics.

Fredericks, now studying and teaching in China, claims that the banner was a publicity stunt, with nonsensical wording, just to gather attention and make a point about free speech. Deborah Morse, then the principal of the high school, saw, instead, a pro-drug message, and suspended Frederick for 10 days. (originally 5 days, but Frederick refused to name his fellow-travelers in crime, and the principal upped the sentence on, umm, principle, when he quoted Thomas Jefferson to her)

Frederick appealed the suspension to both the school Superintendent and the district's school board, both of whom upheld the suspension but reduced it to "time-served" of eight days (the days from the incident to the appeal to the Superintendent).

In April of that year Frederick filed suit in the United States District Court for Alaska, stating that his federal and state rights to free speech had been unnecessarily curtailed.

The District Court held for Morse and the school board, but the 9th Circuit court, on appeal, reversed with a unanimous decision and held that Frederick's rights of free speech had been violated.

The School Board, and Morse, asked the U.S. Supreme Court to hear the case.

There is a peculiar cast of supporting characters, as well -- Kenneth Starr (yes, *that* Ken Starr) is representing Morse (now a Juneau schools' administrator) and the School Board. The U.S. D.O.J.'s Solicitor General, Paul Clement has filed an amicus curiae brief in support of the school authorities. The brief calls for near unlimited control of speech in the schools, based on the thought that "it may be banned if it is inconsistent with a school’s basic educational mission ." This kind of control is just ripe for abuse, considering that, like the "war on terror," the definition of a school's "basic educational mission" can be pretty slippery.

The ACLU is representing Frederick, along with Juneau lawyer Doug Mertz. The briefs filed show that the ACLU is framing the case as a "simple" free-speech case, and not necessarily one of "student's rights," noting that the banner exhibition did not cause disruption (some thought "it was dumb."), the display occurred on public property, and it was not an official school-sanctioned "event."

'Though the school did release students to watch the relay parade, Fredericks did not make it to school that morning, arriving at the parade after the school had let the students out, so Frederick had never been under the school's control up to that point.

Along with the ACLU and Mertz, support for Frederick's actions is coming from the American Center for Law and Justice , who have filed an amicus brief in the case. The ACLJ is a right-wing group that must be feeling somewhat nervous being on the same side of a case as the ACLU (indeed, one of their lead items on their web site's home page is attacking the ACLU).

Along with the ACLJ the Rutherford Institute has filed an amicus brief. At least the Rutherford seems a little more comfortable working with the ACLU -- the two organizations have cooperated in several cases in the past.

Others that have filed amicus curiae briefs in support of Frederick:
- Drug Policy Alliance - amicus brief
- Alliance Defense Fund - amicus brief
- Center for Individual Rights - amicus brief
- Christian Legal Society - amicus brief
- Lamda Legal Defense Fund - amicus brief
- The Liberty Counsel - amicus brief
- Liberty Legal Institute - amicus brief
- National Coalition Against Censorship - amicus brief
- Student Press Law Center - amicus brief
- Students For Sensible Drug Policy - amicus brief

Of course, this mix-master of organizations all have their own agenda -- but the one that is most to look after is the right-wing one, as groups like Liberty Legal (these were the people who represented the two women who were fired after they "prayed over" and "anointed" the desk, chair and cubicle of an absent co-worker) and Christian Legal want to try to find a wedge so they can go back to forced prayer and proselytizing in the public schools.

The transcript of the oral arguments before, though the Supreme Court can be found

It's always a chance if you presume that what questions are asked will be probable indicators of where the decision may go. If that were the case, the decision may hinge on the fact that the then-student was on public property and that his "speech" was not disruptive.

On the one side is the student claiming free-speech utterances of a nonsense phrase, and the school board claiming that a "reasonable person" would view "Bong Hits 4 Jesus" as an endorsement of drug use.

The arguments that the lawyers for Morse and the school board were putting forth to support the "drug endorsement" message really seem a stretch.

The court is expecting to issue a ruling before the summer.

A few background notes: the student was harassed by police several times, and he won a lawsuit against the city, and his father was fired from his job with the city's liability coverage, at least partly because he did not intervene to shut his son up. When the elder Frederick sued for wrongful termination, he got a $200,000 from his lawsuit.

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