Justices Differ Sharply on "bong Hits 4 Jesus" Student Speech case

Education Week reports:

The U.S. Supreme Court appeared sharply divided last week on whether a student’s banner proclaiming “Bong Hits 4 Jesus” outside an Alaska high school was protected speech or a message that school authorities could suppress because it ran counter to their policies against the promotion of illegal drugs.

Justice Stephen G. Breyer seemed to capture the court’s concerns as it heard arguments in Morse v. Frederick (Case No. 06-278) on March 19.

“It’s pretty hard to run a school where kids go around at public events publicly making a joke out of drugs,” Justice Breyer told Douglas K. Mertz, the lawyer representing former high school student Joseph Frederick, whose suspension for 10 days in 2002 stemmed from the incident.
Justice Breyer said he worried that if he took the student’s side, “we’ll suddenly see people testing limits all over the place in the high schools. But a rule that’s against your side may really limit people’s rights on free speech. That’s what I’m struggling with.”

...The arguments came nearly two decades after the Supreme Court upheld the right of secondary school students to wear black armbands to protest the Vietnam War. In that landmark 1969 decision in Tinker v. Des Moines Independent Community School District, the court upheld such political expression as long as school was not substantially disrupted.

Based on the oral arguments, the decision in the Alaska case is likely to be a close one. There appeared to be some sentiment among the justices for carving out an exception to Tinker’s protections when the student speech in question runs counter to school anti-drug policies or when it advocates violent or any illegal activity.

Another possibility is that the justices could decide that Mr. Frederick’s banner was not student speech at all—but protected public speech—because it occurred off campus and he had never arrived at school that day before he showed up at the parade at which he and other students displayed the banner.

...A decision is expected by the end of the court’s term in June.