“Bong Hits 4 Jesus” Should Not Be Protected Speech in the School Setting

George Will recently wrote that there should be two Supreme Courts, with one charged solely with cleaning up messes that the Ninth Circuit Court of Appeals makes with its ill-considered opinions. Indeed, in recent years, the Supreme Court has reversed the Ninth Circuit on numerous occasions. All the same, we feel more kindly toward the Ninth Circuit than Will apparently does. Over the years, that court, with jurisdiction over eight western states, has issued a number of important decisions championing the constitutional rights of individuals over the power of government.

Nevertheless, the Ninth Circuit did a huge disservice to American public education in Frederick v. Morse—the famous “Bong Hits 4 Jesus” case. Unfortunately for school administrators and teachers, the Ninth Circuit’s opinion gave constitutional protection to an utterly unimportant student expression and further ruled that the school principal who censored “Bong Hits 4 Jesus” could be sued personally.

The facts are well known and quickly told. School authorities in Juneau, Alaska allowed high school students to view the Olympic Torch Relay, which passed in front of the high school on a January day in 2002. Student participation in the event was school-sponsored and faculty-supervised, although the supervision was minimal. Students waited until television cameras could record their action and then unfurled a banner, which proclaimed the message, “Bong Hits 4 Jesus.” At the time of this event, students were standing on a sidewalk across the street from the high school.

When Deborah Morse, the high school principal, saw the banner, she crossed the street and told the students to take the sign down. All students complied except for Joseph Frederick, an 18-year-old senior. Frederick asked Morse, “What about the Bill of Rights and freedom of speech?”

Morse replied that the banner violated the school’s policy against offensive material, including material that advertises or promotes the use of illegal drugs. She crumpled up the banner and suspended Frederick for ten days.

Frederick sued, charging a violation of his constitutional right to free speech. In a 2006 opinion, the Ninth Circuit ruled that Morse had indeed violated Frederick’s constitutional rights. Moreover, the court said, Frederick’s free speech rights were well established, and he could sue Morse personally for money damages.

Kenneth Starr, the former special prosecutor during the Clinton administration, filed a petition for review before the Supreme Court. The Court accepted the case, and oral arguments are scheduled for March. We think it likely that the Supreme Court will reverse the Ninth Circuit and clarify the constitutional rights of students in the public schools.

As the Supreme Court so eloquently articulated in Tinker v. Des Moines Independent School District, decided in 1969, students do not shed their constitutional rights at the school house gate. Tinker involved the right of school children to wear black armbands to school in protest of the Vietnam War. Unless school officials reasonably forecast that a student’s speech will likely cause substantial disruption in the school or interfere with the rights of other students, the Supreme Court pronounced, students in the public schools have a First Amendment right to express their views.

This was a ringing declaration of constitutional principles that has guided public education for nearly 40 years, and few public educators disagree with the Court’s pronouncement on students’ right to free speech. Unfortunately, however, in the years since Tinker, students have invoked Tinker’s free speech guarantee over issues much less important than the issue that the Tinker children addressed with their black armbands. Indeed, Tinker has been cited in numerous cases that involved controversies that are trivial and that have virtually no social or political importance.

First, there were the cases in the 1970s in which students filed federal lawsuits to invalidate school grooming codes. Wearing long hair was constitutionally protected expression, these litigants argued; and thus the right to wear long hair should be affirmed under Tinker’s broad principles.

Federal courts split on the long-hair issue, and they remain split to this day. Some courts have sided with students, finding a constitutionally protected interest in wearing long hair. Other courts have ruled that the issue is too trivial to receive judicial scrutiny.

Since then, a parade of student litigants has invoked Tinker in disputes that are simply embarrassing. For example, there is the case of the New Mexico student who argued that wearing saggy pants is a non-verbal message entitled to constitutional protection. In California, students sued for the right to wear clothing that bore the insignia of professional and college sports teams, even though the school district tried to ban such clothing based on the belief that the athletic insignias were associated with gang activity. Then there was the Oklahoma student who wished to wear clothing that proclaimed a message with no apparent social importance and which was borrowed from an advertisement for Bacardi Rum.

It would be hard to identify the most trivial case in which plaintiff students relied on Tinker to advance the right to advance an unimportant message. Our choice would be Pyle v. South Hadley School Committee, in which students filed a federal lawsuit against a Massachusetts school district to uphold their right to wear a t-shirt that proclaimed, “Coed Naked Band: Do It to the Rhythm,” and another that said, “See Dick Drink. See Dick Drive. See Dick Die. Don’t be a Dick.”

The Supreme Court has only decided three cases that involve the free speech rights of public school students, but it has heard several involving the First Amendment rights of public employees—including school teachers. In Connick v. Myers, the Court issued an opinion that undoubtedly reduced the number of these cases that come before the courts. In Connick, the Supreme Court said that a public employee’s speech must touch on a matter of public concern in order to enjoy constitutional protection. A public employee’s speech that only pertains to a personal workplace dispute simply does not implicate the First Amendment.

We think Frederick v. Morse is an opportunity for the Supreme Court to articulate a similar message in cases involving students’ free speech rights in the schools. As Tinker so eloquently articulated nearly 40 years ago, students do not lose their First Amendment rights when they walk on the school grounds. But they should not harass school officials and clutter the court with constitutional claims that do not touch on a matter of public concern—some social, political, or religious issue that has at least some marginal importance to society.

We realize that there are a number of issues that are important to high school students that seem trivial to their elders, and we don’t think school officials should stifle such student expressions. For example, student elections, dress codes, student religious clubs, and the rights of students to express themselves on school policy may seem utterly unimportant in the world of adults; but they may be vitally importance to a sixteen year old.

In fact, in an earlier TCR commentary, we criticized the Ninth Circuit’s decision in Harper v. Poway Unified School District, in which the court upheld a school ban on student speech that was critical of the school’s policy of promoting tolerance toward gay and lesbian students. That student’s expression on the topic of sexual orientation may be offensive to many educators, but it certainly touched on a matter of public concern. Joseph Frederick’s speech, by Frederick’s own characterization, was only designed to be “meaningless and funny.”

Perhaps the Supreme Court will utilize Frederick v. Morse to craft some sensible extension of its Connick rule that can be applied to student speech in the school setting—a rule that will safeguard students’ legitimate interest in free speech on social and political issues, while giving school officials broad authority to control student speech that involves no matter of public concern. We think most public school educators would welcome such a rule.

In any event, thanks to Frederick v. Morse, we will soon know whether a sign proclaiming “Bong Hits 4 Jesus” deserves constitutional protection in the context of a school-monitored activity. We hope the Supreme Court will declare that this phrase is not constitutionally protected as it was used in Frederick v. Morse and thus preserve the majesty of the First Amendment for topics that are worthy of its shelter. Joseph Frederick should retain the right to wave his banner when he is a citizen, but not when he is a student at a school sponsored and supervised event.