The Supreme Court has said no but oddly enough the former Alaska high school student Joseph Frederick who offered Jesus up a toke during a school sanctioned Olympics rally will be $45,000 richer for it. The money no doubt to be used for some prime Mexican sensimillia for further offerings. The school district will pay Frederick $45,000. In exchange Frederick will drop remaining claims not heard by the U.S. Supreme Court. The settlement also calls for the district to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech at his former high school.
The United States Supreme Court initially agreed to take the case after Frederick, a Juneau, Alaska high was suspended for ten days for allegedly “disrupting” an off-campus school sanctioned rally by unfurling a 14-foot-long banner that read:
“BONG HITS FOR JESUS”
Frederick was suspended in 2002 after he unfurled the banner just outside school grounds as the Olympic torch relay moved through the Alaskan capitol, headed for the Winter Games in Salt Lake City. Frederick was not on school grounds when he put up the banner; he was standing on a public sidewalk. He was asked to take the sign down and refused. He was then suspended for ten days. He appealed to the 9th Circuit Court of Appeals, who agreed that his First Amendment rights were infringed upon. The 9th Circuit found that the banner did not disrupt the educational mission of the school, as it was on a public sidewalk and therefore, was considered protected free speech. The school district appealed to the United States Supreme Court. The school’s position was that it was a school-sponsored event in which the students were dismissed from class, and therefore, he should be bound by the same rules as if he were in the classroom. Ken Star, famous for checking into former President Bill Clinton’s “cigar collection,” represented the school district. (Mr. Star was the independent prosecutor in the Lewinsky “affair.”)
The Supreme Court ruled in favor of the school district upholding their right to suspend Morse. The justices ruled that Frederick’s free speech rights were not violated by his suspension over what the majority’s written opinion called a “sophomoric” banner. In writing for the majority Chief Justice John Roberts stated:
“It was reasonable for (the principal) to conclude that the banner promoted illegal drug use– and that failing to act would send a powerful message to the students in her charge,” (Opinion)
Roberts also stated that while the court has limited student free speech rights in the past, young people do not give up all their First Amendment rights when they enter a school sending a strong signal that this case is limited to its facts. The Supreme Court ruling while taking the school district off the hook under the United States Constitution did not put an end to the controversy. There was still litigation pending in the appellate court to determine whether Fredrick’s rights were violated under the Free Speech Provision of the Alaska Constitution. The settlement puts that to rest as well. There very well could have been a different result under the Alaska Constitution which much to Sarah Palin’s chagrin reads differently than the U.S Constitution.
“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”
I frankly called this one wrong when the case first hit the news. I would have bet the mortgage that even a conservative court was going to come down on the side of the student. Public sidewalk. Not a voluntary membership school-sponsored event such as football, band, etc., which are privileges. The school did not offer students the opportunity not to take the day off from school. In my opinion once the student left school grounds, he was “Joe Q. Bong-hitter” and was free to put up any sign he wanted as long as it did not cause an “educational disruption,” incite others to violence, or break some constitutional man-made law. The “center right” Supreme Court did not agree with me holding that a banner “promoting drug use” did disrupt the educational mission. I did not see the banner as promoting drug use.
How would the landscape of such cases change under the Barrack Obama presidency with as many as 3 new appointments to the Supreme Court? There is no doubt that if President-elect Obama gets the right people on the bench we will have a much more activist court. It will drive the Federalists crazy. When you throw out terms such as “economic justice” it leaves little doubt that Constitutional definitions and context are fair game for radical change. Every provision of the Constitutional will be looked at in context of who is invoking it and the justice sought as compared to what it actually says. This will be especially interesting in the free speech and right to privacy areas. Would a new left leaning court find the principal’s interpretations and actions reasonable? What does that mean for the next student offer up some “religious smoke”? What if the sign had said “HOOKA HITS FOR JESUS!“ Jesus is probably getting high right now at the thought of it…
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November 9th, 2008 at 9:08 pm
This is so wrong! It’s blaspheme. And as far as the lawsuit- that’s b.s. I know many people who rights are violated worse than that and they don’t get hardly any money if anything at all. Joseph Frederick is wrong for this! Let me guess- he’s probably some rich kid who knew the right attorneys to get him through this lawsuit?
November 9th, 2008 at 9:26 pm
WONDERFUL achievement for 1st amendment rights. However it also shows what an immature society is founded on aka smoke and mirrors. BLACK TAR HEROIN for the Flying Spaghetti Monster ” is now on the table . AND SHOULD BE
November 9th, 2008 at 9:26 pm
Well we certainly know where you stand on separation of church and state…… there is no state, only church….
November 10th, 2008 at 4:01 pm
my tongue was planted firmly in my cheek . However we will never be able to coexist peacefully on this tiny rock until the world grows out of the superstitious crutch called religion.
November 10th, 2008 at 8:46 pm
Too many issues on which to comment. The Supreme Court effectively overturned Tinker v Des Moines, a very well thought out decision, in which it held that “students do not shed their constitutional rights when they enter the schoolhouse door.” The Court held that speech could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school’s educational mission.
I’m with you, Brian. The Court is wrong in that holding up this sign (was conduct that could be categorized as “promoting drug use” and that it disrupts the educational mission. What if the student had been in debate class arguing for the legalization of drugs or prostitution? (I know it would be judged on a case-by-case basis, but the examples are not to far apart from the facts in this case).
Free speech doesn’t have to be interesting or profound to be protected. It enjoyes protection when it is offensive, heretical, blasphemy, and “sophmoric”. This was the wrong decision for free speech rights. I’m sad it happened because of a dumb sign that isn’t too different from the stupid t-shirts that you can find at any high school in the country.
November 10th, 2008 at 9:40 pm
One other thing…and this is where I take issue with your choice of words.
“There is no doubt that if President-elect Obama gets the right people on the bench we will have a much more activist court. It will drive the Federalists crazy.”
You are right, the Federalists will be driven crazy. However, it won’t be because the court will become more activist, but because they will *perceive* it to be more activist. I’m sure you don’t recall, but there were plenty of folks that poo-pooed Brown vs. Board of Education as judicial activism. Or in the way that most people today (except hard core Federalists) would ageree that the bastards on the “strict-constructionist” Waite Court exhibited their own special brand of activism when they decided that the Civil Rights Act of 1875 was unconstitutional.
The point is that Courts are obligated to *interpret* law, not just uphold it. If all the founding fathers wanted was a body of rubber stampers then they wouldn’t have gone through the trouble of creating a Supreme Court. The straw-man that is the “activist judges” argument is really a cry for today’s courts to stop applying common law and to just read statutes as they are handed to them by the legislators. Federalists get annoyed when courts decide cases by taking in to account inconvenient things like facts, precendents, constitutional drafters’ intent, ethics, etc. I lament the sloganism of calling courts with whom you disagree “activists”. I didn’t think that, of all people, you would be flying the “activist judges” flag.
I think it is sad that so called “conservatives” are all too happy to let blow hards on TV smear any judges with whom they disagrees an undemocratic radicals. Instead of conducting intellectualy honest analysis of judicial reasoning they simply dismiss the decisions they don’t like as “judicial activism” or “legislating from the bench”, a favorite catchphrase that really doesn’t mean anything. It is even more sad to find thoughful conservatives doing the same thing.
I wish the Federalists and others on the right would dispense with their feigned legal purity and be honest regarding their beef with the courts. There are plenty of conscientious conservative and liberal lawyers and scholars with very different ideas of justice and social utility, but most of them agree that this “judicial activism” cannard does nothing to protect the consititution and the separation of powers.
Instead of bemoaning so called “activist courts” we ought to be insisting that that judges decisions be clear, rational, intellectually honest, transparent to citizens, and persuasive to those who are trained to evaluate legal decisions.