Free-Speech Case Divides Bush and Religious Right 

Free-Speech Case Divides Bush and Religious Right 
Posted by CN Staff on March 17, 2007 at 16:17:25 PT
By Linda Greenhouse
Source: New York Times 
Washington, DC -- A Supreme Court case about the free-speech rights of high school students, to be argued on Monday, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right. As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.
On the surface, Joseph Frederick’s dispute with his principal, Deborah Morse, at the Juneau-Douglas High School in Alaska five years ago appeared to have little if anything to do with religion — or perhaps with much of anything beyond a bored senior’s attitude and a harried administrator’s impatience.As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Mr. Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”Mr. Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, “to be meaningless and funny, in order to get on television.” Ms. Morse found no humor but plenty of meaning in the sign, recognizing “bong hits” as a slang reference to using marijuana. She demanded that he take the banner down. When he refused, she tore it down, ordered him to her office, and gave him a 10-day suspension.Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the court’s student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick, No. 06-278. What is most striking is how the two sides line up. The Bush administration entered the case on the side of the principal and the Juneau School Board, which are both represented by Kenneth W. Starr, the former solicitor general and independent counsel. His law firm, Kirkland & Ellis, is handling the appeal without a fee. Mr. Starr and Edwin S. Kneedler, a deputy solicitor general who will present the government’s view, will share argument time on Monday. The National School Board Association, two school principals’ groups, and several antidrug organizations also filed briefs on the school board’s side. While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.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.Lawyers on Mr. Frederick’s side offer a straightforward explanation for the strange-bedfellows aspect of the case. “The status of being a dissident unites dissidents on either side,” said Prof. Douglas Laycock of the University of Michigan Law School, an authority on constitutional issues involving religion who worked on Liberty Legal Institute’s brief.In an interview, Professor Laycock said that religiously observant students often find the atmosphere in public school to be unwelcoming and “feel themselves a dissident and excluded minority.” As the Jehovah’s Witnesses did in the last century, these students are turning to the courts.The briefs from the conservative religious organizations depict the school environment as an ideological battleground. The Christian Legal Society asserts that its law school chapters “have endured a relentless assault by law schools intolerant of their unpopular perspective on the morality of homosexual conduct or the relevance of religious belief.”The American Center for Law and Justice brief, filed by its chief counsel, Jay Alan Sekulow, warns that public schools “face a constant temptation to impose a suffocating blanket of political correctness upon the educational atmosphere.” What galvanized most of the groups on Mr. Frederick’s side was the breadth of the arguments made on the other side. The solicitor general’s brief asserts that under the Supreme Court’s precedents, student speech “may be banned if it is inconsistent with a school’s basic educational mission.” The Juneau School Board’s mission includes opposing illegal drug use, the administration’s brief continues, citing as evidence a 1994 federal law, the Safe and Drug-Free Schools and Communities Act, which requires that schools, as a condition of receiving federal money, must “convey a clear and consistent message” that using illegal drugs is “wrong and harmful.”Mr. Starr’s main brief asserts that the court’s trilogy of cases “stands for the proposition that students have limited free speech rights balanced against the school district’s right to carry out its educational mission and to maintain discipline.” The brief argues that even if Ms. Morse applied that precept incorrectly to the facts of this case, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.The religious groups were particularly alarmed by what they saw as the implication that school boards could define their “educational mission” as they wished and could suppress countervailing speech accordingly. “Holy moly, look at this! To get drugs we can eliminate free speech in schools?” is how Robert A. Destro, a law professor at Catholic University, described his reaction to the briefs for the school board when the Liberty Legal Institute asked him to consider participating on the Mr. Frederick’s behalf. He quickly signed on.Having worked closely with Republican administrations for years, Mr. Destro said he was hard pressed to understand the administration’s position. “My guess is they just hadn’t thought it through,” he said in an interview. “To the people who put them in office, they are making an incoherent statement.”The solicitor general’s office does not comment publicly on its cases. But Mr. Starr, by contrast, was happy to talk about the case and the alignment against him of many of his old allies. “It’s reassuring to have lots of friends of liberty running around,” he said in a cheerful tone, adding: “I welcome this outpouring because it will help the court see that it shouldn’t go too far either way.” Source: New York Times (NY)Author: Linda GreenhousePublished: March 18, 2007Copyright: 2007 The New York Times CompanyContact: letters nytimes.comWebsite: Articles:'Bong' Banner Tests Student Free Speech Case Tests Limits of Student Speech Rights Hits Saga Enters Year Five 
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Comment #14 posted by E_Johnson on March 18, 2007 at 14:47:04 PT
Ooops sorry correction
Ohhhhh if this weren't reality, it would make pretty darned hilarious fiction.
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Comment #13 posted by E_Johnson on March 18, 2007 at 14:45:48 PT
Our society is so crazy
To make such a big stink over a slogan that could mean two completely opposite things!This is nuts when people go to the Supreme Court over a verbless sentence fragment that has no unique meaning according to the rules of English grammar.Meanwhile, the school system in question claims to be educating Alaskan children in the rules English grammar.Ohhhhh if this weren't reality, it make for pretty darned hilarious fiction.
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Comment #12 posted by E_Johnson on March 18, 2007 at 14:39:18 PT
The phrase in question has no fixed meaning
The verbless sentence fragment "Bong Hits 4 Jesus" could mean "Take bong hits for Jesus" or it could mean "Forsake bong hits for Jesus." Either meaning can be legitimately attached to the slogan according to the rules of English grammar.
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Comment #11 posted by kaptinemo on March 18, 2007 at 11:38:32 PT:
The hypocrisy lurches out from the slime, trailing
gobs of itself, completely unaware of how it is being perceived.Mr. Starr is a 'star' member of the Federalist Society A powerful group of (putative) 'conservatives' who are in fact anything but. They are in reality neo-conservatives who, unlike true conservatives, always come down on the side of overweening Federal power instead of indivdual rights. Proof of such was Raich/Monson; ruling in favor of R/M would have been a true stroke of traditional conservatism by forcing a roll-back of Federal power the likes of which have never been seen before. Instead, the predominantly Federalist Society-influenced and represented Supreme Court did the exact opposite of the FS's supposed agenda. And now they seek to regulate free speech beyond the obvious proscription of not being able to shout "Fire" in a crowded theater? In favor of an already overpowering Federal government?Hypocrites. Hypocrites all. 
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Comment #10 posted by MikeEEEEE on March 18, 2007 at 11:20:50 PT
bush has assaulted our freedoms.Some causes that attribute to assaultive behavior are dysfunction of the limbic system, which regulates emotions and motivations, organic brain disease, psychosis, depression, mental retardation, and brain tumors.I think if they had done a psychological assessment on bush before becoming president, they would have found the problems we are seeing today. 
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Comment #9 posted by museman on March 18, 2007 at 10:39:04 PT
"By the way, an IQ less than 70 makes him mildly retarted."So if I call him an 'idiot' then by logic, I should not accused of slander or libel, because it's the truth.
 Of course it ought to be quite obvious that just because it is true is no guarantee that the demigods of our political and legal system are going to see it that way.The logic of our government, is like a habitual drunk who smiles in his stupor, delivering idiotic ultimatums to his children like "Do as I say, not as I do," then falls over into his own puke.
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Comment #8 posted by MikeEEEEE on March 18, 2007 at 08:50:30 PT
Worst president in U.S.
Destruction of U.S. image, and civil liberties.Squeezing out the middle and lower classes.Torture.Iraq war.Katrina.Rove and Libby scandals.And there is more.By the way, an IQ less than 70 makes him mildly retarted.
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Comment #7 posted by Toker00 on March 18, 2007 at 05:56:58 PT
Even a caveman can do it.
How easy is it to figure out that 9-11 was an inside job?
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Comment #6 posted by FoM on March 17, 2007 at 20:51:17 PT
You're welcome. If someone would have told me years ago that someday in the future I would see a case called Bong Hits 4 Jesus go to the Supreme Court I would have said what! Never! These are amazing times.
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Comment #5 posted by whig on March 17, 2007 at 20:49:22 PT
There will be a separating of wheat and chaff soon, no?
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Comment #4 posted by The GCW on March 17, 2007 at 20:36:06 PT
They already have and have been (as You know).They have been supporting the bushmonster. That is in part why there is a bushmonster (again, as You know).Now the Religious wrong may get squeezed and We see them sqirm funny... even to support a sign that says:Bong Hits 4 Jesus!!!-0-NORMLaly, The relgious wrong is so worried about cannabis and bong hits they don't even want hemp to touch them!!!But they will side with the sign just to protect their interest.-0-THINGS ARE TWISTED.-0-FoM,I appreciated You posting this insightful article.The Green Collar worker
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Comment #3 posted by charmed quark on March 17, 2007 at 19:41:52 PT
Holy moly is right
No wonder the religious right is worried. As am I.Notice they aren't just banning speech that is disruptive to the educational mission, but any speech that is inconsistent with it!Whoo! Talk about limited rights.The religious right is worried that the school would decide that they need to education kids about different types of families. "I have two moms" and that sort of thing. Under this "no inconsistent speech" argument, a kid who said homosexuality is wrong, even on the playground, could get punished.And of course, it would be hard to argue that before school prayer meetings are part of the schools educational mission, so they would have to be banned.Even talking about Jesus on the playground would be a serious offense.
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Comment #2 posted by whig on March 17, 2007 at 17:52:50 PT
Money quote
"I welcome this outpouring because it will help the court see that it shouldn't go too far either way."Translation: Don't spank me too hard. Well, okay, but only just a little. Ow! [let your imagination wander, i'm not going any further]
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Comment #1 posted by mayan on March 17, 2007 at 17:43:32 PT
The Religious Wrong
That's what they are if they support Bush. 
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