Alan K. Henderson's Weblog


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Thursday, March 22, 2007

Bong Hits 4 Jesus

No, Cheech and Chong are not guest-blogging today...

This is about one of the weirder Supreme Court cases to come down the pike: Morse vs. Frederick. In The Agora has the story:

In early 2002, a group of students gathered outside a Juneau high school while the Olympic torch passed through the city. The students also sported a 14-foot banner that read "Bong Hits 4 Jesus." All of the students involved were subsequently reprimanded by school officials. Mr. Frederick brought suit against the school, alleging First Amendment violations.

The New York Times (free but annoying subscription required) has more background on the story. Representing the school district is none other than Bill Clinton's old nemesis Ken Starr. Backing Frederick are some of the usual suspects, the ACLU and the National Coalition Against Censorship, and some unusual suspects:

The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as "defending the right to hear and speak the Truth"; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm "dedicated to the preservation of First Amendment rights and religious freedom."

The institute, based in Plano, Tex., told the justices in its brief that it was "gravely concerned that the religious freedom of students in public schools will be damaged" if the court rules for the school board.

Give them credit for setting aside any distaste with the banner itself to see the bigger picture. First Amendment relevancy will be discussed, whether it is truly applicable to this particular case or not, and they need to protect against any potential anti-speech mischief that could come from this case.

Why wouldn't this be a First Amendment case? Here is my first attempt at legal analysis, in comments to the Agora post:

Since the banner wasn't displayed on school property, or even during school hours, the only way that the school can claim any authority to reprimand Frederick is if the event is a school event. The parade is sponsored by the International Olympic Committee.

But is it also concurrently a school event? Let's take a look at school proms. Attendance is optional, and they are often held at off-campus locations. Sounds just like this parade, right?

Not so fast. The prom has one more characteristic: the site of the prom has been specifically reserved by the school for that function. Unless the school made an agreement in advance with the property owners to reserve that area exclusively for students who wished to attend, Principle Morse's case looks weak.

This requires some clarification. As reported by the NYT, the school's cheerleaders and marching band participated in the parade, thus the parade itself is cosponsored by the school. But the parade viewing is a separate event. If the school didn't officially reserve space for student parade viewing, then the school doesn't have jurisdiction to regulate any kind of activity going on there.


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