Every now and then a case comes before the US Supreme Court that has as much entertainment value as constitutional significance. One that by either measure will be hard to surpass for years to come was argued just a few days ago. It is known officially as Morse v. Frederick, but the public better recognizes it as the “Bong Hits 4 Jesus” case.
Anyone who doubts that fact can be stranger than fiction should keep an eye on this one. Is it Dada? Surreal? Absurd? Or merely Alaskan? However the court rules, it is sure to distress as many as it reassures. This, of course, is what the Supremes get the big bucks for — $194,200 for the associate justices, $202,900 for the chief.
These are the facts: five years ago a then–high school student in Juneau, Alaska, named Joseph Frederick played hooky from class but showed up just as students were given a special break to go outside and watch runners relay the Olympic torch as it made its way toward Salt Lake City, the site of the 2002 games. Standing across from the school on a public street, Frederick hoisted a 14-foot banner that carried the now-famous statement — crafted from duct tape — BONG HITS 4 JESUS. Principal Deborah Morse tore down the banner and informed Frederick that he was suspended for five days. Frederick then sought to affirm his free-speech rights to display the message by quoting Thomas Jefferson. Morse was not amused. She doubled Frederick’s suspension.
A less courageous principal might have merely suspended Frederick for skipping school and then reiterated her displeasure by extending his punishment after he mouthed off. But by thinking big, rather than acting narrowly, Morse found she soon had a federal case on her hands. Frederick sued Morse in federal court and lost. The US Court of Appeals in San Francisco overturned that decision and ruled that Frederick was entitled to as yet unspecified damages.
Here is where things get crazy. Former Whitewater special prosecutor Kenneth Starr, whose single-minded pursuit of President Bill Clinton resulted in Clinton’s impeachment for lying about his episodes of fellatio interruptus with Monica Lewinsky, joined Morse’s defense free of charge because — as he argued before the Supreme Court — the war on drugs is of sufficient importance that free speech in effect should be suspended in its prosecution. That’s pretty strong stuff, even coming from a fundamentalist Christian, right-wing nut case like Starr.
Things get even more interesting. Judging from the questions the court asked the various lawyers who argued the case, the justices seem to have little sympathy for leveling damages against Principal Morse. But at the same time they seem to have varying degrees of recognition that high-school students do have some sort of free-speech rights and that school officials probably have to respect those rights to some sort of degree. But the most surprising line of questioning came from President Bush’s most recent conservative appointment, Samuel Alito, who seemed more aware than his fellow Supremes that restrictions placed on speech thought to be school-related might be used to restrict student speech that might have religious flavor or content. A host of conservative Christian legal-action groups, including the no-longer-quite-all there Reverend Pat Robertson’s American Center for Law and Justice, have joined the fray on Frederick’s side, concerned that a negative decision written in a particular way could adversely affect Christian interests.