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Supreme Court agrees to hear `Bong Hits 4 Jesus' case

WASHINGTON—It was a high school prank that surely got laughs but quickly drew the ire of a Juneau, Alaska, principal.

Joseph Frederick's "Bong Hits 4 Jesus" banner also inspired a constitutional argument, however, and the Supreme Court will decide whether the school's principal violated his rights when she suspended him for two weeks after he unfurled the message at a school-sponsored event.

It's a case that plunges the justices back into a familiar exercise in careful line-drawing, one that asks them to define the boundaries between student free speech and educational order.

The principal "was enforcing a school policy against displaying messages that promote illegal substances," lawyers for the Juneau school district wrote in their brief to the high court. The district's lead lawyer is Kenneth Starr, the former federal judge who investigated President Clinton during the Whitewater scandal.

"For that entirely appropriate action, she faces the potential for ruinous liability," the brief continued.

A federal appeals court in California ruled earlier this year that Frederick was entitled to go ahead with his suit, reversing a lower-court decision that had dismissed his complaint.

The National School Boards Association and several anti-drug advocates are backing the principal, Deborah Morse, and the Juneau school district. They want Frederick's suit dismissed.

"The question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school," wrote 9th U.S. Circuit Court of Appeals Judge Andrew J. Kleinfeld.

"The answer under controlling, long-existing precedent is plainly `No.'"

The case began in early 2002, when students at Frederick's school were excused from class to watch the Olympic torch pass by on its way to Salt Lake City.

As the torch passed, Frederick and some friends revealed a large banner with "Bong Hits 4 Jesus" on it. The banner was caught by television cameras at the event.

Morse confronted Frederick, asking him to put down the banner. When he resisted, saying he had a First Amendment right to display the message, she confiscated it and later suspended him for defying her and for having the banner.

Frederick appealed the suspension through the school system, then sued when his efforts were turned away.

The 9th Circuit opinion said the school's actions violated Tinker v. Des Moines Independent Community School District, a landmark 1969 Supreme Court decision that permitted schools to censor student speech only if it interfered with school operations. That ruling prohibits schools from quashing messages that merely conflict with school policy.

But other rulings permit schools to censor student speech when it's obscene or lewd, or can reasonably be perceived as school-sponsored because it takes place at a school event. The appeals court found that Frederick's sign met neither of those criteria.

The 9th Circuit also found that because the law in this area was well established and widely understood, Morse didn't have the personal immunity that most government officials receive when they act in an official capacity. She could be sued personally, the court said.

The high court will have to sort out several issues to decide the case.

The justices may need to decide what Frederick's sign actually meant. Was it an endorsement of illegal drug use? Or was it a political message? Was it harmless?

The 9th Circuit concluded that the sign "may be funny, stupid or insulting" but wasn't offensive.

Starr, in his brief to the court, said the 9th Circuit got it wrong. The sign did carry a pro-drug message, and the lower court's acceptance of it "renders long-standing, commonplace policies against pro-drug messages unenforceable."

The high court also will have to determine how disruptive Frederick's banner was.

Was it tantamount to wearing a T-shirt with a pro-drug message to a pep rally? Or was the torch-watching event sufficiently unrelated to school activity that Frederick was free to display any message without it being associated with the school?

The court is expected to hear arguments in Frederick's case as early as February. A decision should come by the end of June.

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(c) 2006, McClatchy-Tribune Information Services.

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