We’d love to hear how you think this case should be decided. If you’re already familiar with the facts and issues, don’t hesitate to skip down to the questions below under the heading “What do you think?” And then please leave your comments! 

This case arose because Principal Morse suspended twelfth-grader Joseph Frederick from school after he and some friends unfurled a large banner with the memorable but ultimately indecipherable message: “Bong Hits 4 Jesus.”

The place and timing of the message, however, made it obviously and deliberately provocative. The place: right across the street from Frederick’s high school in Juneau, Alaska, which had excused students from class so that they might go outdoors to observe the passage of the 2002 Olympic Torch Relay. The time: the exact moment that the Olympic Torch and television crews passed by.

Upon seeing the sign, Principal Morse confronted Frederick and demanded that he take it down. He refused, and although Morse was able to seize the banner, Frederick remained generally uncooperative: hence a 10-day suspension. The school superintendent who later approved a slightly shorter eight-day suspension for Frederick noted that he had a history of defiant behavior.

Principal Morse contended that “Bong Hits 4 Jesus” advocated illegal drug use – a “bong hit” being slang for smoking marijuana with a particular type of pipe. Frederick claimed the banner display was merely an exercise of his First Amendment rights. He said the phrase itself didn’t mean anything in particular – it was just something he’d seen written on a snowboard. It can be safely assumed, however, that he did hope his banner would both annoy Principal Morse and entertain the classmates and others he hoped would see it.

Frederick sued Principal Morse, demanding money damages for her alleged violation of his First Amendment rights. The federal trial court ruled against him. It reasoned that Morse had the authority to regulate Frederick’s speech pursuant to the Supreme Court’s 1986 decision in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675. The Fraser decision upheld a school’s right to discipline a student who had laced his student assembly speech with sexual innuendo. It declared that schools need not tolerate “lewd, indecent, or offensive speech” by student speakers that “undermines the school’s basic educational mission.”

Frederick ’s fortunes took a turn for the better, however, when he appealed to the Ninth Circuit Court of Appeals. The appellate court reversed the trial court and ruled in Frederick’s favor on the basis of a different Supreme Court case – the Court’s famous Vietnam War-era student rights decision in Tinker v. Des Moines Ind. School Dist., 393 U.S. 503 (1969). The Tinker Court had held that school officials had violated the First Amendment when they suspended students for wearing black armbands in protest of the Vietnam War. The Court’s opinion explained that those students could not be punished because their silent, political protest had not been shown to have “substantially” interfered with the educational process.

So then it was Principal Morse’s turn to appeal, and the Supreme Court of the United States is now in the process of deciding whether it agrees with the Ninth Circuit about “Bong Hits 4 Jesus.”

 What do you think?

Who should prevail in this case – the student or the principal?

Does Frederick’s display of a banner saying “Bong Hits 4 Jesus” resemble the lewd student assembly speech the Court held was properly punished in Fraser? Or is it more akin to the black arm bands that students had a First Amendment right to wear as an anti-war protest in Tinker?

As the Justices confer on what to do with Frederick’s constitutional claims, a third Supreme Court precedent will likely arise in their discussions: Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988). In that student newspaper case, the Supreme Court held that schools may regulate school-sponsored student speech that students, parents and members of the public might “reasonably perceive to bear the imprimatur of the school."

What effect do you think the Kuhlmeier case should have on the resolution of Frederick’s First Amendment claim?

Do you think a reasonable spectator might have thought “Bong Hits 4 Jesus” was a school-sponsored message? On the one hand, when he unfurled the banner Frederick was an 18-year-old adult, on a public street and not on school property, at an event that was officially sponsored by Coca-Cola. He hadn’t attended school at all that day. On the other hand, many students and teachers were present at the event, which was thought to be of educational value and which took place during school hours and right next to Frederick’s school.

What do you think?