BROOKE GLADSTONE:
Bong Hits for Jesus.
[INTRO MUSIC]
MALE ANNOUNCER:
A banner that read "Bong Hits 4 Jesus" may have kicked off one of the biggest free speech cases in a generation.

FEMALE ANNOUNCER:
Joe Frederick unfurled a 14-foot-long banner which read "Bong Hits 4 Jesus."
FEMALE ANNOUNCER:
The school maintains the "bong hits" on the sign refers to smoking marijuana – in clear violation of the school's anti-drug mission.
BROOKE GLADSTONE:
Years of "just say no," DARE and eggs on a frying pan were undone in an instant in 2002, when 18-year-old Joseph Frederick unfurled that infamous banner. Then a high school senior in Juno, Alaska, Frederick was watching a procession of the Olympic Torch along with his classmates as it passed through town on its way to the Winter Games in Salt Lake City.

He knew the media would be there, he said, and he wanted to get on TV, so he dreamed up that provocative, if meaningless, slogan.

Principal Deborah Morse thought that the phrase undermined the school's anti-drug message so she tore down Frederick's banner and suspended him. A long legal battle ensued that landed both of them in the Supreme Court on Monday for oral arguments in Morse v. Frederick, or as it's more commonly known, Bong Hits 4 Jesus.

Mike Hiestand is a legal consultant to the Student Press Law Center. He says this case is one in a series over the decades to deal with the First Amendment rights of students and that the high court seems to keep changing its mind. Mike, welcome to the show.
MIKE HIESTAND:
Thanks for having me, Brooke.
BROOKE GLADSTONE:
So let's start with some of the legal precedents for this case. The first and most widely cited is 1969's Tinker versus Des Moines, where the plaintiffs were students who were suspended for wearing black armbands to protest the war in Vietnam. What did that ruling establish?
MIKE HIESTAND:
You know, that was really the first time that the court directly addressed what sort of First Amendment protection students had when they were in school. They ruled for the student. They said that she did have the right to wear the armband to school. And essentially what they said is that students have the right to engage in free expression up until the point at which their expression is either unlawful or where it creates a disruption of school activities. So it's a fairly respectful sort of appreciation for free speech on campus.
BROOKE GLADSTONE:
But it seemed that that recognition took a bit of a hit 20 years later in Hazelwood School District v. Kuhlmeier. Tell me what the court said in that case.
MIKE HIESTAND:
Well, the Hazelwood case was the first time that the court had an opportunity to address what sort of First Amendment protection students had when they were working on a school-sponsored student newspaper. This was at Hazelwood East High School, and the paper there did some stories on teenage pregnancy and the impact that divorce had on students.

And the court came up with a different standard. They said that school officials could limit student expression where they had a reasonable educational justification for doing so. Some of the examples they gave is they said school officials could censor material that was poorly written, inappropriate or inconsistent with the shared values of the civilized social order – you know, pretty broad, pretty expansive sorts of categories for school officials.
BROOKE GLADSTONE:
And it also effectively created two tiers of student speech, right - speech that originates with the student, like the one wearing the armband in Tinker, and speech that's school-sponsored, as in a school newspaper.
MIKE HIESTAND:
Exactly.
BROOKE GLADSTONE:
So this brings us to Bong Hits 4 Jesus. What concerns do you have about this case? I know the principal and the Bush Administration maintain that Frederick was interfering with the school's anti-drug message.
MIKE HIESTAND:
This case, at least oral arguments on Monday, two of the justices, at least, seem to indicate that the disruption standard would give school officials ability to censor any message which really undermined the message that the school wanted to teach.

You know, I could see the Mary Beth Tinkers of today who want to wear an armband to school to protest to Iraq. If that kind of undermines the, you know, "support our troops" message or whatever particular message the school wants to teach, I could see them being able to get away with it.
BROOKE GLADSTONE:
Usually when students run afoul of principals with regard to speech, it involves the school newspaper. And in Washington State, where you live, there seems to be a number of perhaps overly-censorious principals who've either spiked stories in the school paper or demanded prior review.

In response, State Representative Dave Upthegrove has sponsored legislation, which you helped craft, which largely gives students control of their newspaper.
MIKE HIESTAND:
Basically what the Washington State law does is it tries to reestablish the balance that existed prior to the Hazelwood decision. So student editors are allowed to publish material, unless it’s unlawful or unless, like under Tinker, it would disrupt the school and not allow the normal school activities to continue.
BROOKE GLADSTONE:
So the bill essentially gives responsibility for the paper to the student editor.
MIKE HIESTAND:
That's correct. It's a student paper and the student editors have the right to make the editorial decisions, even if it's something that a principal or other school official disagrees with.
BROOKE GLADSTONE:
Obviously, this show is biased towards free speech, but I honestly don't see why a school-sponsored newspaper can't be used solely as a teaching tool under the school's control. Kids can express themselves with unlimited reach and no restraint, prior or otherwise, in their own papers, in their blogs, in their MySpace pages. Since everyone today owns that proverbial printing press, why not let the schools own theirs?
MIKE HIESTAND:
Before everybody dismisses this law, I just encourage them to go into a well-run high school student newsroom. I mean, that is where you will see the learning that we all talk about wanting to have so much, where there is critical thinking and research and writing and all that sort of thing. And, boy, I think that we would really miss out on a real educational opportunity if we simply said, if you really want to talk about something, things that are important to you, go start a blog - go put up your own website.
BROOKE GLADSTONE:
Mike, thank you very much.
MIKE HIESTAND:
Thank you.
BROOKE GLADSTONE:
Mike Hiestand is the legal consultant to the Student Press Law Center. We'll link to their website at onthemedia.org.