Paul Watler’s Podcast: “Bong Hits 4 Jesus”

July 31, 2007 | Insights

The “Bong Hits 4 Jesus” decision last month by the U.S. Supreme Court probably does not signal that Texas school children must check their free speech rights at the schoolhouse door. School administrators in Texas should be prepared to give wide berth to students engaging in political speech. Peaceful, non-disruptive anti-abortion protests or demonstrations against the war in Iraq, for example, likely remain beyond the power of school authorities to censor.

The Bong Hits case started in 2002. A public high school in Juneau, Alaska let students out of class to watch the Olympic torch pass by on its way to Salt Lake City for the winter Olympics. Students gathered across their school on a public sidewalk. One of the group, senior Joseph Frederick, and several of his friends unfurled a banner with a cryptic message: “Bong Hits 4 Jesus.” Principal Deborah Morse ordered Frederick to take down his 14-foot banner. When he refused, the principal suspended him for 10 days. Frederick then filed a federal lawsuit against the principal, claiming that his free speech rights had been violated. He won in the lower federal courts before the case landed in the U.S. Supreme Court.

When Texas students return to school in the fall, the Bong Hits 4 Jesus decision probably will provide no basis for limiting their political speech.

The principal argued that she had not violated the student’s free speech rights. She contended that the message was about illegal drug use and that she had the right to punish a student for broadcasting such a message at an official school event.

This reasoning was persuasive for Chief Justice Roberts, who wrote the majority opinion in the 6-3 decision. “It was reasonable for the principal to conclude that the banner promoted illegal drug use and that failing to act would send a powerful message to the students in her charge.” Roberts wrote that drug abuse can cause severe and permanent damage to the health and well being of young people. To the chief justice, the state’s interest in deterring drug use by school children was sufficient justification for the punishment meted out by the principal. Indeed, to Roberts, this was not even a First Amendment case because it did not implicate political speech. “Because schools may take steps to safeguard those entrusted to their care from speech that can be reasonably regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick,” the decision reads.

The three dissenting justices, led by Justice John Paul Stephens, were sharply critical of Robert’s reasoning. Stephens wrote that the Roberts opinion creates out of cloth a special First Amendment rule permitting the censorship of any student’s speech that mentions drugs. To Stephens, the banner was not one advocating drug use but simple nonsense speech that should not have been the subject of disciplinary action. To Stephens, allowing school officials to punish such nonsensical speech may result in later cases allowing school officials to punish “a full and frank discussion of the cause and benefits of the attempt to prohibit the use of marijuana.”

Chief Justice Roberts went to some lengths to explain that the majority opinion must be read narrowly and not as any encroachment over the right of students to engage in political speech. Roberts noted that while some decisions of the Supreme Court have limited student free speech rights in certain circumstances, young people do not give up all their First Amendment rights when they enter a school. A concurring opinion by Justice Samuel Alito reiterated the narrow view of the majority opinion. Alito wrote that the majority opinion provides no support for any restriction of speech that can possibly be interpreted as commenting on any political or social issue.

When Texas students return to school in the fall, the Bong Hits 4 Jesus decision probably will provide no basis for limiting their political speech. Should young Texas scholars unfurl a banner at a school event that reads “Texas pro-life students for Jesus,” or one that proclaims “Texas anti-war students for peace,” the Morse v. Frederick rule provides no ammunition for a principal bent on punishing that expression.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer.