On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, giving its residents "a rare chance to appear on national television." The principal at Juneau-Douglas High School (JDHS) decided to let her students watch the torch relay from the street as it passed by the school, with teachers watching with them.
Joseph Frederick, a JDHS senior, joined his friends (all but one of whom were JDHS students) across the street from the school to watch the event, and as the torch passed in front of them, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” School officials confiscated the banner, and suspended Frederick from school for ten days. Frederick sued, claiming that such actions violated his rights under the First Amendment.
In a 5-4 opinion today (and you'll be hearing this phrase a lot) written by the Chief Justice, the Supreme Court ruled that the school's desire to safeguard its students from a pro-illegal-drug message outweighed Frederick's rights under the First Amendment. Chief Justice Roberts writes:
The question thus becomes whether a principal may, consistent with the First Amendment , restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may...Justices Alito and Kennedy claim in a concurrence that they're a little uneasy about this one, but are swayed by the anti-drug thing and the banner's lack of political content. Justice Thomas, also concurring, would rather make the broader holding that public school students have no free speech rights. ("In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.")
[Our previous holding in Fraser] demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.”
...Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ . . . the nature of those rights is what is appropriate for children in school.”
... Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest. Drug abuse can cause severe and permanent damage to the health and well-being of young people...Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs ... and required that schools receiving federal funds under the Safe and Drug-Free Schools and Communities Act of 1994 certify that their drug prevention programs “convey a clear and consistent message that ... the illegal use of drugs [is] wrong and harmful.” ...
School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.
In dissent, Justice Stevens writes (for himself, Justice Souter and Justice Ginsburg) that this is all ridiculous worrying about a nonsense banner:
It is also perfectly clear that “promoting illegal drug use” comes nowhere close to proscribable “incitement to imminent lawless action.” Enouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship:This is a sad day for the First Amenmdent . . . or is it? FEC v. Wisconsin Right to Life up next.
“Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. ... Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” Whitney v. California, 274 U. S. 357, 376 (1927) (Brandeis, J., concurring).
No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.”
...[I]t is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy...
To the extent the Court independently finds that “BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that. Ante,at 7 (positing that the banner might mean, alternatively, “ ‘[Take] bong hits,’ ” “ ‘bong hits [are a good thing],’ ” or “ ‘[we take] bong hits’ ”). Frederick’s credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything.7 But most importantly, it takes real imagination to read a “cryptic” message (the Court’s characterization, not mine, see ibid., at 6) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.