'Bong Hits 4 Jesus' Ruling Raises Questions About Students' Free-Speech Rights

Legal expert details high-schoolers' First Amendment protection.

Monday's Supreme Court ruling against a high school student's "Bong Hits 4 Jesus" banner has brought the topic of students' free-speech rights to the front pages of the nation's newspapers.

Joseph Frederick was 18 at the time of his 2002 suspension for unfurling a 14-foot banner bearing the words "Bong Hits 4 Jesus" during a parade in support of the Winter Olympic Games (see "Could 'Bong Hits 4 Jesus' Case Chill Free Speech In Schools?").

It remains to be seen what far-reaching effects the decision will have on students' free-speech rights. There's still a great deal of confusion regarding the issue since there are really no hard-and-fast rules concerning what forms of speech are acceptable when you're a student — and which ones could land you in front of a judge.

When students ask Witold "Vic" Walczak — the legal director for the American Civil Liberties Union of Pennsylvania — for a general rule of thumb when it comes to students' First Amendment rights, "What I usually tell them is, if it involves political or religious speech, you've got fairly extensive rights. Beyond that, not so much. Truth be told, students did not have significant expressive rights before now, except when it dealt with religious and political [matters]."

Frederick — who claimed his principal, Deborah Morse, had violated his federal and state constitutional rights to free speech when she confiscated his banner and, eventually, suspended him from school — lost his case based on the fact that the banner could have been interpreted as promoting illegal drug use. The Supreme Court considered that a clear violation of the school district's anti-drug policy (see "Supreme Court Rules Against Student In 'Bong Hits 4 Jesus' Case"). Frederick maintains that was never his intention.

But according to Walczak and others, what it really boils down to is the type of speech being expressed, how it's expressed, where it's expressed and who takes offense to said speech. And even then, it's not so simple.

"When it comes to serious criticisms and discussions of what's going on in society, you're safe as long as you do it in a non-profane, relatively respectful way," he said. "You can get those messages out, even if they're critical of what the school is doing. The school would have a tremendous burden to justify either punishing a student or telling them they can't express that message, either on a T-shirt or handing out fliers."

For the most part, Walczak said schools have policies that are "facially unconstitutional," or too restrictive of speech. "Mark Twain's famous saying is, 'God created idiots — that was for practice. Then he created school boards.' Unfortunately, we find a lot of that to be true. What it comes down to is, you get some principal or some administrator, or some official who has thin skin. Rather than just bringing a kid in and having an adult-type talk with them — which, nine times out of 10, the kid will feel bad and do something to fix the situation — they just throw the book at the kid and punish him or her up the wazoo."

In Frederick's case, the offensive speech was drug-related, and it unfolded during a school-sponsored event.

"When it comes to speech in school, even before yesterday's decision, schools had significantly more authority to curtail student speech than, say, the police or anybody else would have outside of school," he said. "While you may have the right to swear at a police officer, you certainly couldn't swear at a teacher and not suffer some kind of penalty. Schools have significant authority to regulate and control what you write in a student newspaper, or what you say in a student play, or any kind of expression during a school-sponsored activity. One of the things the 'Bong Hits' court focused on ... was that it was a school-sponsored activity, so they had significant latitude over what kids did during that activity."

Each case is different, he added, and has to be taken on its own merits. But generally speaking, "You need to distinguish between rights in school and out of school," Walczak explained. "The reason I say that is, there is actually a lot of litigation involving students' rights outside of school, specifically on the Internet. A kid sitting at his home computer puts something up on MySpace, making fun of his principal, and the principal sees it and gets pissed off. Can the principal then punish the student? We're in the middle of our fourth lawsuit on that, and we're hoping this one leads to some definitive law on that."

So where does a school's power begin and end? "There's a lesson here for both teachers and students," Walczak said. "The lesson for teachers and administrators is, their authority stops at the schoolhouse gate. ... So if a student flips the bird to a principal at a mall, can that principal use his or her authority to punish the student? Our argument would be no."

Walczak referred to several of his most recent cases to illustrate his point. One involved a student who was booted from school for alleged drug use. Several students at the school wrote messages on their hands protesting the school's decision to expel the student. The school later suspended more than 20 students for displaying the messages on their hands, even though the students' silent version of political speech did not substantially disrupt the educational process -- one of the more popular explanations school administrators utilize to restrict student speech.

"That's a form of political speech that is protected," he said. The case was settled out of court. Another involved football players who'd been caught drinking on school grounds during their summer vacations. They returned in the fall to suspensions, and the students then made T-shirts that read "Innocent." When they tried to wear the shirts, the school informed them they couldn't.

"Why not?," Walczak asked. "That's political expression and should be protected under the First Amendment. It's a criticism of something the school did or was doing, and it's a form of protest — political speech that is entitled to the greatest First Amendment protection."

When it comes to dress codes, some schools object to students wearing clothes that could be deemed offensive or that promote drug use. Wearing a shirt with a marijuana leaf on it wouldn't fly. Even a Bob Marley shirt might be questionable, Walczak said.

But a recent court ruling "made it clear that if you came to school and passed out copies of the [1975] Alaska Supreme Court decision that decriminalized marijuana — and that's a pro-drug message — you couldn't be punished for that, because it's a form of political speech."

If a student decided to wear a shirt from the band Anti-Flag, with an upside down flag across the front of it, "some official might think it's disrespectful and punish that student. But that's a political statement -- that's political speech. And unless it causes a substantial material disruption at school, they can't prohibit that student from wearing that shirt."