An odd case makes good law

George Will comments on the odd-ball free speech in public schools case, “Bong Hits 4 Jesus,” decided by the Supreme Court this term. At a school-sanctioned and faculty-supervised event during normal school hours, students were watching the Olympic torch pass through Juneau, Alaska en route to the 2002 Winter Olympics in Utah. Joseph Frederick and some friends, standing on a public street across from their school, unfurled a banner reading “Bong Hits 4 Jesus.” The school principal ordered the students to take the sign down. Frederick refused. The principal suspended him for ten days.
By a 5-4 vote, the Supreme Court ruled that the principal did not violate Frederick’s free speech rights. That ruling seems correct. Either Frederick was urging his fellow students to violate the drug laws or he was uttering random nonsense which students could reasonably construe as urging them to violate the drug laws. In either case, I believe the school has the right to curtail the speech.
Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in which he agreed with the outcome but only on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it does not support restrictions of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use.
I think Alito’s approach strikes the correct balance in this context between the school’s interest in preventing advocacy, on its premises or at its events, of illegal drug use and the rights of students to comment on political and social issues. Of course, it may not always be easy to make the distinctions that underlie Alito’s approach. As Will suggests, somewhere a student may be dreaming up a slogan that puts Alito’s test to the test.
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