Speech could take a hit

Schools' authority to silence students should not reach off-campus

Tuesday, March 20, 2007

If Joseph Frederick had been in his Juneau, Alaska, school that day in 2002 when he unfurled a 14-foot banner that read "Bong hits 4 Jesus," we'd say that then-principal Deborah Morse would have been within her rights to make him take it down.

It could plausibly be interpreted as a message promoting the use of an illegal drug, although it could just as plausibly be interpreted as what it apparently was - a publicity stunt.

But Frederick was across the street from school, with a group of students watching the Winter Olympics torch relay pass by. Frederick was suspended from school for 10 days and he sued, saying his free speech rights had been violated.

The 9th U.S. Circuit Court of Appeals sided with the student, and the U.S. Supreme Court heard arguments in the appeal on Monday.

In a public setting, Frederick should be free to say anything he likes - and the fact that the message may go against school policy shouldn't make any difference.

Given school administrators' tendency to overreact to criticism, it would be very dangerous to give them unfettered authority to control what students say even when they are not on school property.

That wide latitude is what school officials hope the court will grant them. Last August, Juneau school superintendent Peggy Cowan said administrators need plenty of leeway to guarantee that anti-drug messages aren't diluted. "This is an important question about how the First Amendment applies to pro-drug messages in an educational setting," she said.

During Monday's arguments, U.S. Department of Justice attorney Edwin Kneedler advocated such sweeping authority, but Justice Samuel Alito wasn't buying it. "I find that a very, very disturbing argument," he said, given that schools often define their educational mission very broadly, and could use that power to suppress political speech as well as speech expressing fundamental student values.

Frederick's case has attracted support from a number of groups not commonly found on the same side, such as the Alliance Defense Fund, a conservative Christian litigation group, and Feminists for Free Expression. They share a common concern that their opinions are unpopular in certain quarters and might be the next to be censored.

There's reason to worry, because school officials are eager to avoid controversy by suppressing speech that might give offense.

For instance, in the brief it submitted in this case, the National School Boards Association said not only that the principal's actions were supported by previous Supreme Court decisions, but also that "low value speech is not worthy of First Amendment protection, and the lower \[the] value of the speech, the more discretion school officials must be afforded."

No, we don't trust school bureaucrats with the power to decide whose speech is "low value." During the Vietnam War, a free-speech decision ruled that students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

We hope this decision makes it equally clear that administrators' authority does not extend beyond that gate.