You won't find these bedfellows bunking down together very often. And it took a banner saying "Bong hits 4 Jesus" in Juneau to do it. Ain't America great?
For anyone who's managed to miss the story:
Morse v. Frederick is a First Amendment student free speech case that was argued before the Supreme Court of the United States on March 19, 2007. The case involves Joseph Frederick, a then 18-year-old high school senior in Juneau, Alaska, now 24, who was suspended for 10 days after displaying a "Bong Hits 4 Jesus" banner across the street from his high school during the Winter Olympics Torch Relay in 2002.
In this week's Voice, Hentoff writes:
James Madison, who wrote the First Amendment, would have been heartened by the clear, firm perspective of Justice Samuel Alito in this case. I have been critical of Alito's views of the Fourth Amendment and other criminal-justice constitutional issues. But as he demonstrated when he was on the Third Circuit Court of Appeals, Alito knows why the First Amendment had to be added to the 1787 Constitution four years later.
Responding to the argument that a school can cut off student speech that is inconsistent with its "basic educational mission," Alito said: "I find that a very, very disturbing argument because schools . . . can [thereby] define their educational mission so broadly that they can suppress all sorts of political speech expressing fundamental values of the students [that the principals judge to be] inconsistent with their educational missions." Raise a glass to Sam Alito!
In circulating his opinion among his fellow justices, I hope Alito will remind them that Joe Frederick was intentionally across the street from his high school, and that even in the otherwise restrictive Kuhlmeier decision, that court recognized that "the government could not censor [student speech] outside the school"—including "streets, parks, and other traditional public forums that time out of mind, have been used for . . . communicating thought between citizens discussing public questions."
Joe Frederick and his banner were on a public street across from the school. If this court fails the First Amendment on other counts in this case, at least students won't be entirely gagged when they're away from school. But inside schools, maybe Sam Alito can save free speech—including about Jesus, pro or con.
Hentoff also notes with some irony the dubious devotion of Frederick's school to its "mission:"
Worth noting: At an early point in this case, as NPR's Totenberg reported, "Joe Frederick and his father offered to settle the case if the school put on an assembly at which students would hear from an ACLU representative and a school board official explaining what student rights are."
The Juneau School Board refused what would have been a memorable teaching moment for the students, faculty, and school board. It is now up to the Roberts Court to either support Joe Frederick or flunk the First Amendment for what could be at least a generation. The court will focus on whether any student speech that violates "a school's basic mission" can be forbidden. Each school would decide that for itself.
I'd say that the school board, by running in the opposite direction from a square and open discussion of student rights, has indeed provided a "memorable teaching moment"--just not the one that Hentoff or the rest of us might wish for their students.
And there's this coda:
Joe is now a high school English teacher in China. He sure is needed there.Update: Of course, before anyone gets too misty-eyed about Sammy, and as much as I care about First Amendment issues, let's not forget why he was really put on the Supreme Court. More on this later.
Hentoff's article is on the much-neglected Readings list in the sidebar.