The "Bong hits 4 Jesus" case: Viewing Frederick's publicity stunt through Kuhlmeier's lens

Third year Yale Law student Murad Hussain outlines a possible defense in the Bonk Hits 4 Jesus case, using Hazelwood School District v. Kuhlmeier. In Kuhlmeier, decided two years after Fraser, the Court rejected three students’ challenge to their principal’s censorship of the school newspaper. See the article in The Pocket Part, a companion to the Yale Law School Journal.

"The Court could interpret Frederick’s banner as speech in a publicly directed expressive activity of the kind that only Kuhlmeier has contemplated. Unlike the purely intra-school discourse in Tinker or Fraser, expressive activities such as plays and concerts are forums in which student speech is often managed for dissemination beyond the school. When schools sponsor such activities for the education and enjoyment of student participants and public audiences alike, the schools function not just as inwardly focused educational instruments but also as civic institutions engaging the citizens who support them.

...Instead of asking whether school resources aided production of speech, the Court should examine whether a student reached his chosen audience by participating in the school’s expressive activity. Under such an inquiry, a live event’s publicity and audience become dissemination-promoting resources. In Frederick, the school’s imprimatur on the rally enabled students to gather outside during class for a civic celebratory purpose. By giving students’ sentiments a public airing, the school generated publicity by creating a media-friendly backdrop for the torch relay. Without the school’s permission, students would not have been allowed outside, and Frederick may not have received his desired television audience even if he had cut class in order to stand all alone in front of the school. The rally could therefore be seen as facilitating the public dissemination of Frederick’s message to the passing cameras.

By viewing Frederick’s publicity stunt through Kuhlmeier’s lens, the Court could endorse the school’s decision to discipline Frederick while narrowly defining the context in which educators may regulate drug-themed speech. Although this would be a defeat for Frederick individually, such a ruling would not be the setback for First Amendment protections that an expansion of Fraser might. At the very least, it would be unfortunate if the Court broadly reshapes the contours of intra-school discourse with an idiosyncratic case in which the student was not trying to speak to anyone at school."