This week's Legal Currents column is entitled Rebel With a Cause, or Without a Clue?:
Jim Stark: Nobody talks to children.
Judy: No, they just tell them.
— “Rebel Without a Cause”
I’m not sure Joseph Frederick knew what he was getting into when he unfurled a 14-foot banner that stated “Bong Hits 4 Jesus” on a cold, snowy Alaskan day in January 2002. Or, perhaps he did.
Frederick was a kid who enjoyed pushing the limits and, by all accounts, was a thorn in his school principal’s side. Prior to the “Bong Hits 4 Jesus” incident, police had been called to his school after he refused to leave the commons area, where he was reading an existential novel by Albert Camus.
Another time, he flexed his free speech muscles and refused to stand for the pledge of allegiance, after which he was sent to the principal’s office and threatened with suspension.
But, his rebel yell piece de resistance occurred on the day that the Olympic torch was scheduled to pass by the school. Students were allowed to leave school early to watch the event, and Frederick, who had skipped school that day, stood with friends on a sidewalk located across the street from the school. With the goal of attracting media attention, he strategically unveiled his banner as the torch and camera crews approached.
According to Frederick, a five-day suspension was initially imposed, but the principal increased the suspension to 10 days after Frederick uttered a Thomas Jefferson quote about free speech. Frederick challenged his suspension and then filed a Section 1983 lawsuit alleging that his constitutional right to free speech had been violated.
On March 19, the U.S. Supreme Court heard oral arguments in this case, during which our finest judicial minds used their collective brainpower to decipher the underlying meaning and free speech implications of a nonsensical phrase first seen by Frederick on a snowboard. “Bong Hits 4 Jesus” — a seemingly meaningless slogan made suddenly meaningful by virtue of the possibility that it could change First Amendment jurisprudence for generations of teenage pranksters to come. By either design or mere happenstance, Frederick hit the judicial jackpot.
The issue over which the justices puzzled in Morse v. Frederick is whether Frederick’s unfurling of the offending banner on a sidewalk not located on school property is speech protected by the First Amendment, or whether he engaged in disruptive speech that interfered with the school’s educational mission to combat student drug use.
The latter argument, offered by former White House Independent Counsel Kenneth Starr, has disturbing implications. Essentially, Starr asserts that schools have nearly unlimited jurisdiction to suppress student speech, regardless as to whether it occurs on school grounds.
Under Starr’s argument, there seem to be no restrictions upon what a school’s educational mission includes, and the determination of whether the offensive statement violates the educational mission is a subjective one. Starr would allow school officials the unfettered power to suppress any student speech that does not conform to the limited reality spoonfed to the students by virtue of a limitless educational mission.
As Justice Alito explained during oral arguments, the problem with this position is that it allows schools to “suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”
In other words, it would be a big mistake to allow a school’s broadly framed educational mission to squelch the type of discourse often found at the crossroads where adolescent angst meets discriminatory thinking.
Regardless of whether Frederick landed on the doorstep of the highest court as a result of intelligent design or dumb luck, one thing is certain: The outcome will resonate for generations to come.
Should Starr’s alternate reality prevail, in which students are told what to think, the unintended and unfortunate result may be generations of teenage rebels without a clue.
And, for those who are interested, Frederick, his banner and the olympic torch are shown at the beginning of this video clip of that cold day in Alaska: