Court mulls over protected speech lawsuit

Posted: Monday, April 14, 2003

JUNEAU (AP) A lawsuit filed by a former Juneau high school student raises questions about what constitutes protected speech and what determines a school event.

Joseph Frederick was suspended as a senior at Juneau-Douglas High School last year after he and others displayed a banner stating Bong hits 4 Jesus.'' The banner was displayed on a sidewalk across from the school during the passing of the Olympic Torch Relay in late January 2002.

School Principal Deb Morse seized the banner and suspended Frederick for 10 days, citing inappropriate and defiant behavior, among other reasons. The Juneau School Board later upheld the suspension, but reduced its length.

Since then, Frederick sued the School Board and Morse, and the issue became a federal case about free speech.

The Alaska Civil Liberties Union has provided financial and legal assistance, said Frederick's attorney, Douglas Mertz of Juneau.

Frederick wants an injunction to keep Juneau schools from taking similar actions in the future, removal of the suspension from his school records and unspecified monetary damages, Mertz said.

Both sides have filed briefs calling on the U.S. District Court in Alaska to find in their favor without holding a trial.

The school denied Frederick his right to free speech under the state and U.S. constitutions, Mertz argued in court documents.

Frederick said the phrase was intended as humor and an exercise of free speech, and not intended to advocate any message about drugs or religion. The phrase is used on a brand of snowboard, he said.

We thought we had a free-speech right to display a humorous saying,'' Frederick said in an affidavit filed in court papers. The content of the banner was less important to us than the fact that we were exercising our free-speech rights to do a funny parody.''

The school district considered bong hits'' a reference to inhaling marijuana through a pipe, and said the banner could be construed as advocating illegal drug use.

Courts have said a school can't restrict speech based on its content, except for vulgar or obscene language at school-sponsored events, Mertz argued. A student's freedom of speech is even less limited off campus, he said.

Among the issues is whether Frederick and other students were attending a school function when they watched the relay. Mertz said the high school had allowed, but not required, students to leave class and watch the relay, the Juneau Empire reported.

The school board argued that the students watching the relay were under school supervision. The school had the authority to discipline Frederick for displaying a banner it reasonably construed as advocating the use of illegal drugs, said David Crosby, a Juneau attorney representing the school board and Morse.

Crosby said Frederick wasn't suspended solely for displaying the banner, but for being truant in the first class that day, refusing Morse's instructions to put down the banner and go to her office, and refusing to explain the banner's meaning or identifying the other students involved in the incident.

The matter is not a free-speech issue, Crosby argued, because Frederick has said he wasn't trying to express anything in particular. Statements that have no meaning or that can't be understood aren't protected speech, Crosby said.

Crosby noted the Supreme Court has found that schools can discipline students for advocating illegal drugs even if the students don't disrupt the school.

U.S. District Judge John Sedwick is hearing the case.

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