The Morse in this case is Deborah Morse, principal of the public high school in Juneau, Alaska. The Frederick is Joseph Frederick. At the time of this brouhaha he was an 18-year-old senior student. The case began on Jan. 24, 2002, when the famed Olympic torch was being relayed from Athens to Salt Lake City, there to ignite the Winter Olympic Games. The small parade would pass by the school in Juneau on its way. The facts are not greatly in dispute. As the torch-bearer neared, Frederick and his buddies suddenly unfurled a 14-foot banner that read, "Bong Hits 4-Jesus." Principal Morse rushed from the sidelines, confiscated the banner, and summarily suspended the youth for five days. When he impudently mentioned the First Amendment, she gave him five days more. He sued for violation of his civil liberties. He lost in the District Court but won a sweeping victory on appeal to the ninth Circuit. School officials appealed. Now we await the high court's imperial disposition. If this were a perfect world the case would have never arisen at all. Frederick would have unfurled his banner with its strange device. The principal would have rolled her eyes and muttered a teacher's consolation: Boys will be boys. End of incident. Now we await the most significant opinion in 20 years in the area of student speech. Oral argument on March 19 set off some entertaining fireworks but served mainly to blow smoke in the eyes of the facts. These are: (1) The parade was not a school-sponsored event. It was sponsored in Juneau by the local bottler for Coca-Cola. (2) Joe Frederick was not playing hooky. Classes had been dismissed for the parade. He had every spectator's right to engage in peaceful demonstration on a public street. (3) His banner was not "obscene" or "pornographic." It libeled no one. It did not advocate unlawful conduct. To the extent that the banner was understood at all, it presumably urged the legalization of marijuana. So? Unless the Constitution's First Amendment had lost its meaning, this was protected free speech in its most elementary form. So much for the facts of the case. They are all on the student's side. What of the law of the case? It comes down on his side also. Three cases are directly on point. The first precedent developed in Des Moines in 1969, when the high court upheld the free speech rights of the Tinker children: They had come to school wearing armbands in opposition to the war in Vietnam. The second came in 1986, when the court upheld a suspension imposed upon Matthew Fraser, in Pierce County, Wash.: He had delivered a mildly salacious speech at a high school assembly. In the third case, Hazelwood School District v. Kuhlmeier , the court in 1988 upheld the power of school authorities in suburban St. Louis to censor articles in a school newspaper. Notice the huge distinction between these three precedents and the pending case from Juneau: Every one of them involved speech on school property, on school time, under school authority. Here the provocative speech was on a public street, on free time, in the midst of a parade sponsored by the local bottler of Coca-Cola. Justice Samuel Alito appeared to grasp these elements. Justices David Souter and Ruth Ginsburg also indicated some inclination to stand by the First Amendment. It was keenly disappointing to hear Justice Antonin Scalia and Chief Justice John Roberts appear to side with the school authorities. When Frederick's counsel argued that there had been no substantial "disruption" until Principal Morse rushed into action, Scalia attempted to redefine the meaning of "disruption." He appeared to suggest that any public disagreement with a school's anti-drug "message" could be punished. Where did he get an idea like that? Not in the Constitution, that's for sure. We'll see how it all turns out. If a vote were taken in the hallowed chambers of the press room, Mr. Justice Kilpatrick, meaning me, would vote to affirm the ninth Circuit. Boys will be boys! I know. Once upon a time, I was one. (Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.) COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.

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