FAIRBANKS - On Jan. 24, 2002, as the Olympic Torch Relay was passing by, Joseph Frederick and a group of friends standing across the street from Juneau-Douglas High School unfurled a banner that read “BONG HiTS 4 JESUS.”
Because Frederick attended the school, and because students had been allowed out to observe the torch’s passing, principal Deborah Morse walked across the street, confiscated the banner, and ordered Frederick to her office. Shortly thereafter, she suspended him.
This sophomoric incident led Frederick to sue Morse and the school district for violating his First Amendment right to free speech.
The case worked its way to the U.S. Supreme Court, resulting in a ruling that essentially declared student speech seen as encouraging drug use as unprotected by the Constitution. The road to that ruling, seen by some as a major encroachment on the free speech rights of students, is exhaustively and quite evenhandedly examined by Oregon State University political science professor James C. Foster in a new book that shares its title with Frederick’s banner.
Whether one is interested in the case itself, the civil rights of students, or the workings of the American judicial system, there’s a lot to chew on here.
Foster isn’t taking sides in this dispute. He explores it from virtually all angles, picking apart the arguments of both parties, as well as the various decisions handed down by the three courts that heard the case. He has sympathy for both Frederick and Morse, but this doesn’t prevent him from criticizing decisions each made that prevented them from resolving their conflict.
At the heart of Foster’s book is his understanding that the two sides each presented their own narrative of what occurred. He points out that virtually the only facts agreed upon are that Frederick hoisted the banner and Morse took it down and suspended him. Everything that happened from the time Frederick entered Morse’s office is disputed.
Frederick’s story has shifted somewhat over time, but his basic claim is that he was merely attempting to exercise his free speech rights and get seen on television. He insists his slogan wasn’t meant to promote drug use but simply conjoined drug slang with religion to be controversial and draw attention. As Foster explains, Frederick’s narrative is that he is a victim and should be compensated.
Morse’s narrative is one of accountability. As principal she was tasked with upholding the school’s zero tolerance approach to drugs.
In her opinion Frederick’s banner clearly advocated their use. For her not to punish Frederick would be a failure to do her job.
Looking at these two divergent views on the same incident, Foster notes that both Frederick and Morse dug in and refused to acknowledge, much less understand, the other’s position. Frederick decided he was a champion of free speech based on his admittedly childish stunt. Morse saw herself as the guardian of order who could brook no such action. Unable to find a smidgen of common ground, they headed into the courts.
Foster follows the case through its stops in the U.S.
District Court, where Judge John Sedwick found in favor of Morse, on through the 9th U.S. Circuit Court of Appeals, where the lower court’s decision was reversed and Morse was held personally and financially liable for her treatment of Frederick, and finally into the U.S. Supreme Court, where a 5-4 majority found in favor of Morse.
Citing court transcripts and legal arguments, Foster presents both sides’ positions extensively. In a testament to his skillful handling of this story, readers will find themselves torn between both parties. Where a more ideologically inclined author would attempt to sway opinions by selectively parsing the record to favor one side, Foster documents both sides fairly and fully, leaving no easy answers on how the case should have been decided.
The final Supreme Court decision was far more complex than a simple reading of the 5-4 ruling indicates.
Foster delves into the three widely differing opinions that supported Morse, as well as the two dissenting views. What emerges is a deeply divided court unable to agree on the constitutional questions raised by the case. What appears on the surface to be a “drug exception” to student free speech is a morass of judicial writing that doesn’t simply fail to clarify how the First Amendment applies to schoolchildren but further muddies the issue. How the ruling will be applied to future cases remains highly uncertain.
Along the way to the final decision, Foster covers quite a bit of additional territory.
Two chapters are devoted to the numerous decisions regarding student rights.
Lengthy passages delve into the controversial history of the 9th Circuit court, the politics of Supreme Court nominations, the fairly recent emergence on the court of separate concurring and dissenting opinions, and quite a bit more. Most readers will finish this book with a far deeper understanding not only of the case itself but also of our judicial system.
It’s a complex work that requires time and careful attention to properly absorb, but it’s well worth the effort. Ultimately Foster finds less fault with the court’s decision than with Frederick and Morse. His final pages are spent contemplating what could have happened if they’d worked to find a resolution. For Foster, the real shame isn’t the decision; it’s the fact that the case went so far to begin with.
It could have been avoided if Frederick and Morse had only opted to talk with each other rather than past each other. Their mutual failure personifies the problem with most of the civil disputes that occupy our courts.
Freelance writer David A. James lives in Fairbanks.
BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska’s Capital
By James C. Foster
University of Alaska Press
382 pages $29.95