School Board tries to recover 'Bong Hits' court fees

This from the Juneau Empire:

A lawyer representing the former local high school student whose "Bong Hits 4 Jesus" banner unfurled a lengthy free speech debate is accusing the attorney for the Juneau School Board of harassing his client over a $5,000 legal bill.

Douglas Mertz said the board's lawyer is trying to force his client, Joseph Frederick, to leave his job in China to face a February deposition in Juneau regarding his personal finances.

"The only motive here is revenge, retaliation and harassment," said Mertz, who filed a motion Tuesday with the U.S. District Court to prevent Frederick from being forced to appear in court in person.

Frederick was ordered to pay court fees of about $2,000 each for a U.S. Supreme Court case and the most recent District Court case he lost. With added interest, his fees total roughly $5,000, Mertz said...

Student’s Threatening ‘Fiction’ is Unprotected Speech, Court Rules

Citing recent incidents of violence at schools and colleges, a federal appeals court has ruled that a high school student merited no First Amendment protection for an essay in which a character dreamed about killing her mathematics teacher.

The ruling by a panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, involved Rachel Boim, who was a student at Roswell High School in the 88,000-student Fulton County, Ga., district in fall 2003 when she got into trouble for a story titled “Dream,” which was in a personal notebook that a teacher discovered.

“I lothe [sic] him with every bone in my body,” the narrative’s character says of her math teacher. “I stand up and pull the gun from my pocket. BANG the force blows him back and everyone in the class sit [sic] there in shock.”

Ms. Boim told administrators the work was just “creative fiction,” according to court papers. She was suspended for 10 days and recommended for expulsion, although the school board upheld only the suspension.

Ms. Boim and her parents sued the district and administrators, alleging that the discipline violated her First Amendment right of free speech.

[Relying on the “Bong Hits 4 Jesus” case: Morse v. Frederick] A federal district judge in Atlanta ruled against the Boims, and in a July 31 ruling, the three-judge panel of the 11th Circuit court unanimously backed the lower court.

The appeals court said that in light of a climate in which at least 10 school shootings occurred across the country in the eight years preceding Ms. Boim’s essay, school authorities did not violate the student’s rights.

“We can only imagine what would have happened if the school officials, after learning of Rachel’s writing, did nothing about it and the next day Rachel did in fact come to school with a gun and shoot and kill her math teacher,” the court’s opinion said. “In our view, it is imperative that school officials have the discretion and authority to deal with incidents like the one they faced in this case.”

“That same rationale applies equally, if not more strongly, to speech reasonably construed as a threat of school violence,” the 11th Circuit court said in Boim v. Fulton County School District.

More on Bong Hits 4 Jesus from Kentucky School News and Commentary and this "Ruling in ‘Bong Hits’ Case Seen as Leaving Protection For Students’ Free Speech,"

This from Education Week (subscription).

Bong Hits 4 Jesus: Debriefing

Yesterday, the U S Supreme Court crafted a narrow ruling in the "Bong Hits 4 Jesus" case, Morse v Fredrick, that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity when that speech may promote the use of illegal substances. Today, the lawyers are analyzing what that means with respect to free speech.

Here's what happened:

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, student Joseph Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

But Frederick never reported to school. He said his car was stuck in snow.

He arrived outside the school in time for the torch entourage. He stayed on the sidewalk across the street from Juneau-Douglas High, and with the help of several other students, held up the banner just as the torch passed, in the hope of getting on the local TV news.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

Juneau principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating drug use. But it probably did not help his case with the court, that he later pled guilty to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Texas.

This from PBS's NewsHour.

Experts Analyze Supreme Court Free Speech Rulings

JUDY WOODRUFF: What signals does the court send with today's decisions? For that, we turn to: Walter Dellinger, former acting solicitor general under President Clinton, and now a law professor at Duke University; and Richard Garnett, associate professor at Notre Dame Law School, where he teaches on First Amendment issues.

Richard Garnett, to you, first, three decisions, three split decisions, 5-4. Is there a common thread here as it relates to the First Amendment? Are we learning something about this court and the First Amendment today?

Richard Garnett: Notre Dame Law School

"...you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice's thinking and writing, namely, incrementalism."

RICHARD GARNETT, Notre Dame Law School: You know, one thread that seems to hold these cases together is that, in all three, you had an older decision that the courts have had the option of either rejecting or reversing entirely or trying to live with. And in several of the cases, you saw some of the justices on the conservative side saying, "Look, we should take this farther. The cases you're asking us to work with, they were wrongly decided. Let's scratch them and move on."

But in all of these cases, the court decided not to do that. And instead you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice's thinking and writing, namely, incrementalism.

JUDY WOODRUFF: Is that what you're seeing, Walter Dellinger, incrementalism?

Walter Dellinger: Duke University School of Law
"In the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use."

JUDY WOODRUFF: Well, we hear Professor Garnett saying, though, they're doing this along pretty narrow definitions of the law.

WALTER DELLINGER: Well, that was true at least in one of the cases today, the school case. One of the things we learned about the First Amendment today was that the court -- it's a little more differential [sic] to free speech rights of corporations than it is to public school students in one important respect...

...And yet in the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use.

But what does the phrase "Bong Hits 4 Jesus" mean? Nobody knows. The kid may have just wanted to get on television.

But in that case, the court went the other way and assumed that this was an advocacy of illegal drug use. I don't think that an earlier court in Tinker would have thought this unprotected speech by the student.

~

This from the Los Angeles Times: Justices let schools ban pro-drug signs.
High court rules, 5-4, that administrators have the right to discipline students for promoting illegal activities.

This from Education Week: Supreme Court Backs Discipline of Student for Drug-Related Banner.

And this: U.S. Supreme Court Limits Student Speech in 'Bong Hits 4 Jesus' Case.

This from BBC News: US student loses free speech case

This from the Christian Science Monitor: Court restricts student expression.
The Supreme Court ruled Monday that school officials retain discretion to censor student speech that they believe may encourage illegal drug use.

This from Breitbart: Top US court rules against 'Bong Hits 4 Jesus.'

This from CNN: 'Bong Hits 4 Jesus' case limits student rights.

This from the Chicago Tribune: Court Limits Student Free-Speech Rights.

This from MSNBC: Supreme Court limits student speech.
In 'Bong Hits 4 Jesus' case, Roberts says advocacy of drug use can be curbed.

No Bong Hits 4 Jesus after all

The US Supreme Court handed down its decision in Morse v. Frederick today where the Court held that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity that may be reasonably interpreted to promote the use of illegal substances.

A high school student was suspended after he displayed a banner with the message "Bong hits 4 Jesus" during a televised parade on a school day.

The student subsequently sued his principal, arguing that the principal unreasonably restricted his right to free speech. The Court reversed the Ninth Circuit's decision and held that the "First Amendment does not require schools to tolerate at school events student expression that contributes" to the danger of illegal drug use.

Read the Court's opinion per Chief Justice Roberts, along with a concurrence from Justice Thomas, a second concurrence from Justice Alito, a partial concurrence and dissent from Justice Breyer, and a dissent from Justice Stevens.

This from Jurist.

And this from the Anchorage Daily News.

WASHINGTON -- The Supreme Court tightened limits on student speech today, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.
Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.
His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

"The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."
Morse suspended the student, prompting a federal civil rights lawsuit.
The winning side in the case was quick to assert that the decision was not anti-free speech.

In their concurrence, Justices Samuel Alito and Anthony Kennedy specified that the court's opinion provides no support for any restriction on speech that goes to political or social issues.

It's a narrow ruling that "should not be read more broadly," said Kenneth Starr, whose law firm represented the school principal.

Students in public schools don't have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era.

The court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission.

Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.

Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.

Free-Speech Case Divides Bush and Religious Right

Bong Hits 4 Jesus

The New York Times reports: A Supreme Court case about the free-speech rights of high school students, to be argued on Monday, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right.

As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, student Joseph Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the court’s student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick, No. 06-278. What is most striking is how the two sides line up.

The Bush administration entered the case on the side of the principal and the Juneau School Board, which are both represented by Kenneth W. Starr, the former solicitor general and independent counsel.

While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary. The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”

The institute, based in Plano, Tex., told the justices in its brief that it was “gravely concerned that the religious freedom of students in public schools will be damaged” if the court rules for the school board.

More analysis from the Supreme Court of the U S - SCOTUSBLOG...and here.