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Justices Weigh Free Speech for Students

March 19, 2007 at 12:00 AM EST
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JUDY WOODRUFF: In January of 2002, while standing along a parade route just across from his Juneau, Alaska, high school, then 18-year-old Joe Frederick unfurled a 14-foot-long banner which read, “Bong Hits 4 Jesus.”

Frederick freely admitted he was challenging school authority. School principal Deborah Morse quickly confiscated the banner and suspended Frederick for 10 days. Frederick sued Principal Morse and the school board for violating his First Amendment rights to free speech.

He lost at the federal district level, but won in appeals court. Morse then appealed all the way to the Supreme Court, which today heard oral arguments in the case.

As always, NewsHour regular Marcia Coyle was in the courtroom, and she joins us now.

Marcia, good to see you.

MARCIA COYLE, National Law Journal: Nice to see you, Judy.

JUDY WOODRUFF: So this entire case stems from a high-school student holding up a banner?

MARCIA COYLE: It does, absolutely, “Bong Hits 4 Jesus,” a 14-foot banner. He used duct tape to spell out the words.

JUDY WOODRUFF: And why did it make it all the way to the Supreme Court?

MARCIA COYLE: Well, the school board and the principal lost in the lower court. And the school principal is represented by former Solicitor General Ken Starr. He’s taking on this case without pay.

And I think he made a compelling case to the Supreme Court that, one, look, it’s been 20 years since you’ve taken a students’ speech case. And right now in the lower courts, there are a lot of speech cases. And the lower courts are struggling to find, what is the line between what is protected speech and what isn’t?

So I think the Supreme Court took the case, not only to say whether or not “Bong Hits 4 Jesus” is protected or not protected speech, but to give the lower courts some guidance in this area.

JUDY WOODRUFF: That was part of the argument that he made in the court making the decision. So he started off today…

MARCIA COYLE: He did.

JUDY WOODRUFF: … because it was the principal — this is Ms. Morse — who was bringing this case, ostensibly. What did he say?

MARCIA COYLE: It’s important, also, to note that the principal and the school board are not only challenging whether the student’s rights were violated, but she also faces potential damages. And that’s a second issue in the case.

And Mr. Starr was first up at the lectern in the court, in a very crowded courtroom, for a very lively argument, and he said, This case is really about drug use. This was a banner that was promoting drug use, a message that was inconsistent with the school’s anti-drug policy and disruptive of the school’s educational mission.

Justice Kennedy came in quickly and said, Well, is this really just about drug use? I mean, what rule do you want from us? What do you want us to say?

And Mr. Starr said that he thinks the court should look back to 1969 and a Supreme Court decision that said that, when student speech is disruptive of the educational mission, it can be restricted.

The school's position

JUDY WOODRUFF: And Kennedy led off with some of the questioning?

MARCIA COYLE: He did. And not everybody was sold immediately on this argument. In fact, Justice Souter and Justice Ginsburg had two problems with the argument. First, the message here.

They both said that "Bong Hits 4 Jesus" was nonsensical, a ridiculous message, clearly a student trying to get attention.

And Justice Souter also said, you know, what was the disruption here? You had a public sidewalk, across from the school, a large crowd, kids throwing snowballs, people waiting for TV cameras. And then this banner is unfurled without, you know, any disruption. What does disruption mean unless, in your view, it means any statement inconsistent with the school's mission?

JUDY WOODRUFF: And how did Kenneth Starr answer that?

MARCIA COYLE: Well, he said that the school principal is the first interpreter of what the educational mission is here. And this statement promoting drug use was disruptive of the school's overall educational mission.

Justice Alito came in -- and this is really his first student speech case on the court, but not in general. He had a case when he was a lower appellate court judge, and in that case he was rather pro-student speech.

But today he said he thought that Mr. Starr's argument, which is also supported by the Bush administration, was a very, very disturbing argument. He said schools today can define their missions, and do define their missions, very broadly. So a lot of student speech, political, which is our most protected speech, and other kinds of speech may be restricted under the rule that Mr. Starr was promoting.

JUDY WOODRUFF: So, in a way, you were seeing early on what Justice Alito's thinking about this is?

MARCIA COYLE: That's correct. Mr. Starr, of course, came back. He has a fallback position, and that is the court can decide this narrowly if it wants. Just focus then perhaps on drug use. We have a national policy that drug use is injurious to health. Schools can restrict that speech.

JUDY WOODRUFF: His argument being that, the more narrowly they interpret it, the better it is for the plaintiff -- for the teacher, the principal who is bringing this case?

MARCIA COYLE: Well, at least if the court doesn't buy the broader rule that they have a fallback.

The student's argument

JUDY WOODRUFF: So then you have the attorney for the student, Joe Frederick, making what argument?

MARCIA COYLE: Well, he sees this case totally different. He says this isn't even a student speech case.

Mr. Frederick didn't go to school that day. He was on a public sidewalk across from the school. This, he said, was a pure speech case. And what he did here was protected by the First Amendment.

But, he told the justices, if you do see this as a student speech case, the rule you should apply is that the speech is protected unless it's disruptive of school activities. And there was no disruption here.

JUDY WOODRUFF: So if you put all the justices' comments together -- and I know I've heard you often say you can't determine how a case is going by what the justices say...

MARCIA COYLE: That's true.

JUDY WOODRUFF: ... what struck you, and the Alito comment is fascinating.

The justices' perspectives

MARCIA COYLE: I thought it was very interesting, three justices you want to keep an eye on. First, Justice Alito, because he's new, and he seemed very skeptical of the principal's and the government's argument.

Chief Justice Roberts, he had some very good questions that seemed to suggest he was sympathetic to the principal. You know, how much speech can you allow and still carry out your mission as a School?

In fact, Justice Scalia said at one point to the student's lawyer, You are turning schools into open forums. That's not my vision of what a school is.

And then, third, Justice Kennedy, always been a strong First Amendment vote, but also very strong on anti-drug messages.

JUDY WOODRUFF: But you were telling me before we came on the air that it was Justice Breyer who you thought summed up the argument, the decision that the court may have to grapple with?

MARCIA COYLE: He often does. I mean, he said, here's what worries me. If I rule for you, the student, I can see suddenly people, probably students, testing the limits in high schools all around the country. If I rule for the principal, then I see a lot of speech being restricted. That's what I'm struggling with.

And that's where the court has to find the line.

JUDY WOODRUFF: A fascinating case.

MARCIA COYLE: Very interesting case, fun argument.

JUDY WOODRUFF: Marcia Coyle with the National Law Journal, thank you very much.

MARCIA COYLE: Thank you. Good to see you.