Once more the lunacies of America's rights-crazed culture are on display in our highest court -- disguised, of course, as a serious civil-liberties issue. A high school in Juneau, Alaska, released students from class to watch the 2002 Olympic Torch Relay. As the torch runner passed, Joseph Frederick, a senior and apparently an apprentice wisenheimer, attempted, along with some friends, to attract television cameras by unfurling a 14-foot banner with the words "BONG HITS 4 JESUS." Deborah Morse, the school principal, took the banner away and awarded Frederick a ten-day suspension.
Inevitably, he sued, alleging a violation of his First Amendment right to freedom of speech. The school board upheld Morse, as did a federal district court, but a three-judge panel of the Ninth Circuit Court of Appeals reversed. The nine justices of the Supreme Court then accepted the case for review under its official title of Morse v. Frederick, though it will undoubtedly go down in history as "the great bong case."
There is a certain madcap disproportionality in all this. An insignificant five-year-old fracas has now engrossed the time and energy of 13 federal judges as well as the principal and the school board. It is a truism that we live in a culture riddled and fragmented by ever-proliferating rights, but that this minor instance of school discipline should be treated as a crucial civil-rights issue suggests that we have lost our balance and even our sense of humor. Deploying the federal judicial system in full regalia for the Morse-Frederick squabble is like hunting field mice with an elephant gun. It would be merely laughable if it were not possible that basic principles of the First Amendment will be put in play and further deformed.
There is little consensus about the proper result in this case. Liberals and those hybrids known as libertarians generally favor the further expansion of the category of protected utterances. Conservatives can be found on both sides. My own view is that Frederick's complaint should have been dismissed out of hand. The speech clause took a wrong turn some time back, and, in cases like this, it very likely does more harm than good to both law and education.
The Ninth Circuit panel saw the issue as "whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly 'No.'" The issue, as so framed, is a bit peculiar. Joseph Frederick may have been off campus in some sense, but the court of appeals itself said the school could have supervised the students more closely had it chosen to: "Frederick was a student, and school was in session." But it is not my purpose to quibble about such oddities.
The court of appeals thought this case was controlled by the precedent of Tinker v. Des Moines Independent Community School District (1969), which held that high-school students protesting the war in Vietnam had a First Amendment right to wear black armbands in school.
The Court said that "the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible." But in order to reach the conclusion that Tinker was dispositive, the Ninth Circuit judges had to distinguish it from Bethel School District No. 403 v. Fraser (1986), in which the Supreme Court held that a high-school student did not have a First Amendment right to give a sexually suggestive speech in a school assembly. The panel said, "The phrase 'Bong Hits 4 Jesus' may be funny, stupid, or insulting, depending on one's point of view, but it is not 'plainly offensive' in the way sexual innuendo is."
This is the first and the less important flaw of current doctrine. How can three judges know that no significant number of students or teachers at the Juneau high school find the reference to Jesus and marijuana "plainly offensive"? For that matter, how can any court know whether black armbands worn to school to protest a war in which the United States is engaged are less offensive than sexual innuendo? In all likelihood, what a particular group actually finds offensive will be less important than what a few judges think people should or should not find offensive.
It should be unacceptable that judges who have inadequate knowledge of what took place some years ago issue rulings and then depart the scene, leaving others to bear the burden of the long-term outcomes. Justice Hugo Black's dissent in Tinker looks better and better.
Black, a fierce advocate of free speech and expansive First Amendment protections, nevertheless wrote with considerable indignation that the Court had taken from educational officials "the power to control pupils." He rejected the notion that teachers and students can use schools as platforms for speech. In my view, what has gone wrong in Tinker, in much of free-speech jurisprudence, and now in Morse began, primarily in the 1920s, with the storied but overvalued dissents of Justices Oliver Wendell Holmes Jr. and Louis Brandeis.
Holmes and Brandeis held that, in assessing the dangers of speech advocating violence and lawbreaking, judges had to estimate the danger posed by each instance of such speech. Thus, when a radical called for the violent overthrow of the government, the judge had to ask what danger that specific speech or pamphlet posed and not, as the Court majorities of the time insisted, the danger posed by many such calls. Ultimately, after much uncertainty, a unanimous Court adopted the essentials of the Holmes-Brandeis position in Brandenburg v. Ohio (1969), overturning the conviction of a Ku Klux Klan leader for inciting racial violence. The guarantees of free speech and free press, the Court said, in an opinion astounding for its distance from reality, do not permit government to outlaw the advocacy of force and violence except where the advocacy is directed to inciting or producing imminent lawless action and is likely to succeed in doing so. This is the test applied in Morse, albeit in a much less threatening context, and the objections to it are the same. One speech advocating racial violence may not present an immediate danger, but what if it is one of a thousand such speeches? One bong banner may not disrupt the school's educational efforts, but what if similar acts become common in the school? This is the famous "broken windows" problem. Two or three or a half-dozen broken windows create no serious threat in themselves, but left unfixed they convey the message that nobody cares much. Authority is marginalized, and crimes of greater seriousness follow.
When Joseph Frederick gets away with his crude behavior, other students notice, and the school is well on the way to problems with discipline. The court of appeals noted that there was other rowdy conduct among the students -- snowballs and flying bottles -- but said such behavior was not traceable to Frederick's bong banner. The court could not possibly be sure of that. The banner, the snowballs, and the flying bottles are "broken windows." Principals and teachers ought to be free to deal with minor infractions of good order even if, viewed in isolation, they do not threaten the educational mission.
Education in the United States is concededly in poor condition. There was a time when public schools did a far better job, and that time was characterized by school discipline without recourse to the ACLU and the new and burgeoning mass of constitutional rights. I went for three years to a public high school where behavioral standards were maintained, at least during school hours. I was suspended for saying "Thanks a lot" to a teacher in a sarcastic tone. It never occurred to me or anyone else to go to court. And the result was good for the school, for the other students, and, not least, for me.
It is unfortunate in the extreme that law is being forced into every institution and social relationship. When law attacks authorities within institutions, it weakens those institutions, deprives them of their integrity, and makes them less effective. No doubt the obsession with rights has spread to the general population, which is all the more reason for the courts to step back and stop feeding the rights paranoia. If the Supreme Court holds for Deborah Morse, no harm will be done to Joseph Frederick or the law, and a process of rethinking the First Amendment, and reinvigorating schools and other institutions, may begin.