Free Speech: High School Student's "Bong Hits 4 Jesus" Banner Protected by First Amendment, 9th Circuit Says 3/17/06

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The US 9th Circuit Court of Appeals in San Francisco ruled March 10 that an Alaska high school principal violated a student's constitutional right to free speech by suspending him for 10 days for holding up a banner reading "Bong Hits 4 Jesus" during a televised parade near the high school campus. Juneau-Douglas High School student Joseph Frederick unfurled his banner for camera crews during the January 2002 parade. Principal Deborah Morse ripped the banner from his hands and told him he was suspended for promoting illegal drug use.

The student said the banner and the phrase -- which he called meaningless -- were designed solely to attract the TV cameras during the parade. But the school district argued the student was suspended because the phrase was a "pro-marijuana" message that conflicted with school district anti-drug policies.

The 9th Circuit was having none of that. In a unanimous ruling, a three-judge panel held that even high school students have a right to express themselves if they don't disrupt school or its educational mission. "A school cannot censor or punish students' speech merely because the students advocate a position contrary to government policy," wrote Judge Andrew Kleinfeld for the panel.

Frederick unsuccessfully appealed his suspension, then sued, seeking removal of the suspension from his record, an admission his rights had been violated, and damages. He lost in federal district court, but picked up support from the Student Press Law Center, the Village Voice newspaper, and the First Amendment Project. Sonja West, an attorney for those organizations, told the San Francisco Chronicle they intervened out of concern the federal district court ruling that the banner was school-sponsored expression was too broad and would allow the school to control any student speech as if it were a school newspaper, which the courts have ruled schools can censor. The 9th Circuit's decision "reaffirms the idea that for a school to simply allow students to express themselves during school hours does not mean the school is endorsing the message," West said.

The case is not over. Frederick, now a University of Idaho student, will seek to end the case with an order barring the school from punishing students for non-disruptive speech. Oh, the 9th Circuit also held that Principal Morse is not entitled to qualified immunity and may thus be liable for monetary damages for violating Frederick's rights.

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Issue #427 -- 3/17/06

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