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March 4, 2007 - Anchorage Daily News (AK)

'Bong Hits 4 Jesus' Goes To The Supreme Court

By Tom Kizzia, Anchorage Daily News

Return to Drug War News: Don't Miss Archive

JUNEAU: Teen suspended for banner gets his day in nation's highest court.

The long journey started five years ago, on a quiet afternoon at Juneau-Douglas High School, as a student sat alone in the commons area reading Albert Camus' novel "The Stranger."

In mid-March the road ends at the U.S. Supreme Court, where the nationally watched "Bong Hits 4 Jesus" case will test the limits of free speech in public schools.

Joe Frederick was an 18-year-old senior back then. His classes were done for the day, and "Camaro Joe," as some kids called him, was waiting for his girlfriend to finish so he could give her a ride home. As Frederick recalls the story, a vice principal approached and told him he couldn't stay in the commons without supervision. He would have to leave the campus to wait for her.

Frederick refused. He insisted he had a right to sit quietly in his own school and read a French existentialist. Two Juneau police officers were summoned, and Frederick left after they threatened to arrest him for trespass.

The next morning at school, Frederick turned his chair around and sat with his back to the flag during the Pledge of Allegiance.

"This was my symbolic protest against a school administration that clearly lacked common sense and abused its power to retaliate against anyone who dared question their authority," he wrote later in a mini-autobiography where he quoted Thoreau, Voltaire and Martin Luther King.

Frederick said his father was summoned to the school to discuss a possible suspension. School officials say they have no record of the incident.

Regarding a suspension at that point, the Supreme Court was already clear. In the unsettled world of free speech rights in public schools the right to refuse to salute the flag is one of the few established points.

After that, Frederick said, he resolved to find a free speech protest that would draw wider notice.

He found one.

On Jan. 24, 2002, Frederick and friends unfurled a 14-foot paper banner with duct-tape letters reading "Bong Hits 4 Jesus." They were standing on a sidewalk opposite the high school during a public Olympic-torch parade attended by students and teachers.

The phrase, which they'd spotted on a snowboard sticker at a local ski slope, was meant to be funny, provocative and nonsensically ambiguous, Frederick said. To school officials, it was an open challenge to their anti-drug policies, at what they deemed a school event.

Principal Deborah Morse crossed the street and crumpled up the banner.

Frederick's move -- and the school's stern response -- had more impacts than he ever imagined. The incident gave way to his suspension from school, several arrests by Juneau police, a lawsuit against the city settled in his favor, the loss of his father's job and, eventually, the departure of father and son from Alaska and the United States.

It also resulted in a court case, Morse v. Frederick, that has climbed through the federal system and will be up for oral argument in the Supreme Court on March 19.

Frederick, now 23, still sounded like the defiant student existentialist Friday in a teleconference from China, where he is teaching high school English.

"I wanted to know more precisely the boundaries of my freedom," he said when reporters asked why he'd raised the banner. "I feel that if you don't use your rights you lose them."

Surprising Allies

It's easy to picture someone like Joe Frederick in any high school yearbook or teen movie: new to the town, chafing at authority, bright but not the most serious about classwork (though Frederick still talks about a government class where they discussed the Bill of Rights).

"He was definitely a kid who liked to push buttons," said a classmate, Micaela Croteau.

The banner itself didn't cause a big reaction that day among students, Frederick said.

"Students thought it was dumb," Croteau agreed. "But people were mostly amused by the way the administrators reacted, how they got on their walkie-talkies and called for backup."

Backup at this point has come to include the National School Boards Association, former federal drug czar William J. Bennett and the solicitor general of the United States. Arguing for free on behalf of the Juneau School Board is Kenneth Starr, the former independent prosecutor whose investigation led to the impeachment of President Clinton.

Frederick has drawn reinforcements, too. The American Civil Liberties Union has worked with Juneau lawyer Doug Mertz since the original case was filed in April 2002. They went to court after the school board refused to erase Frederick's eight-day suspension from his record.

Among other friends-of-the-court on Frederick's side are a half-dozen Christian and constitutional rights organizations who say they are looking past the "ill-advised stunt" to worry about future censorship of religious or "pro-family" expression in public schools. Also submitting briefs for him are groups supporting drug-policy reform and gay rights as well as booksellers, librarians and feminists.

The organizations on Frederick's side all come around to a similar argument: that school officials should not be able to punish nondisruptive student speech just because they interpret it as contradicting school policy. They argue that Frederick's decision to unfurl his banner off school property makes the school's reach even more alarming.

The fact that this occurred in Alaska was relevant, the 9th U.S. Circuit Court of Appeals said when it ruled in Frederick's favor last year, setting up the Supreme Court showdown.

Alaska has had a particularly lively and ongoing legal and political debate over criminalization of marijuana, the court noted. Would the school's laudable anti-drug policy mean administrators could challenge a student handing out the Alaska Supreme Court decision allowing private possession of marijuana, the court wondered?

On the other side, lawyers argue that promoting drugs or alcohol at school events has long been banned by school policies. They contend the students were attending the torch parade during school hours as part of a school-sanctioned event.

"The banner -- if left undisturbed -- could have told not only the high school student body but the larger community that drug-use promotion is openly tolerated within the local public high school," Starr said in his brief.

Juneau school superintendent Peggy Cowan said last week that the district encourages discussion of controversial issues, including drug policies. But such debate belongs in the classroom, she said.

School officials are especially troubled by the 9th Circuit decision to hold Morse personally liable for violating Frederick's First Amendment rights. Removing her official immunity will make it hard for officials across the country to interpret school board policies, they contend.


Trouble started piling up quickly for Joe Frederick after he unfurled his banner.

That afternoon, he was suspended by principal Morse for 10 days. Starr said in his Supreme Court brief that Frederick "displayed a belligerent attitude and gave evasive and mocking answers to her questions."

Frederick said a five-day suspension was doubled after he talked back by quoting Thomas Jefferson on free speech. Morse testified the extra days came because he wouldn't cooperate and name the other students who held the banner.

The following week, while serving his suspension, Frederick was arrested by Juneau police and charged with trespass while parked at the municipal swimming pool next to the high school, waiting to pick up his girlfriend. His white Camaro was impounded and searched for drugs. He complained that police ruined his electrical door and windows. "The only thing found was a straw that was in a Taco Bell cup that the police listed as drug paraphernalia," he later wrote.

The trespassing charges were dropped after a dispute over how close to the property line his Camaro was parked, according to city attorney John Hartle.

Back in school, Frederick was suspended again in March for wearing a Leatherman tool in the hallway. He was also arrested again, this time after failing to signal a left turn in his Camaro. Police took him to jail, saying he'd failed to pay an old fine for minor-consuming-alcohol. The charge was dropped when police discovered it was a clerical error, said Mertz, Frederick's lawyer.

Frederick accused the school and police of retaliating because of his banner. He eventually sued the city for harassment over the arrests. City officials agreed in 2004 to pay a $22,000 settlement without conceding any guilt, according to records.

Meanwhile Frederick's father had lost his job, in part because of the federal lawsuit his son filed against the school board.

Frank Frederick was in a tight spot, to be sure. He was a risk manager for the school district's insurance company. The company was facing big legal fees because of the federal suit. The senior Frederick agreed to shield himself from anything touching on the legal case. But after refusing to intervene with his son, he was demoted and eventually fired, according to his lawsuit against Alaska Public Entity Insurance. The case, which turned on other issues as well, ended with a jury award to Frederick of $200,000 plus interest and fees.

Frank Frederick has since found himself unable to get a job in the insurance industry, said Mertz. With no aid from his father, Joe Frederick said, he dropped out after his first year of college. His father eventually found work teaching English in China, and Joe recently joined him there.

Bitter Feelings

During the ACLU teleconference Friday with national reporters, Joe Frederick declined to say where he's living in China or compare himself to dissenters there. Nor would he answer when a Juneau reporter, citing information passed along by "detractors," asked about a criminal conviction for selling marijuana in 2003, during his college year in Texas.

"I've never professed to be perfect or a saint," Frederick said. "To reduce this to mudslinging and personal character assassination is wrong."

Texas court records show Frederick pleaded guilty on March 17, 2004, to a misdemeanor sale of pot near the Stephen F. Austin State University campus and was sentenced to 60 days in county jail.

Juneau lawyer David Crosby, who represented the schools in the early rounds of the case, said Frederick has "delusions of grandeur."

"The Bong Hits case is an interesting one, and the district has not gotten a whole lot of sympathy from the press. So be it," Crosby said via e-mail last week.

"It is particularly galling, however, that while the district is being painted as the enemy of students' rights, the carefully manipulated image of Joe Frederick as a latter day Thoreau ... is highly misleading, offensive and ludicrous," he said.

For his part, Frederick said Friday he's glad he stuck with the free-speech lawsuit, despite the uproar it caused in his life. The stakes have grown big, but it was clear that on some level this was still about Camaro Joe with his nose in the face of an unbending school administration.

"They don't want to admit that they're wrong in any way," he said.


Deborah Morse, Juneau School Board V. Joseph Frederick

The Supreme Court

On March 19, the U.S. Supreme Court will hear oral arguments in Morse v. Frederick, a free-speech case from Juneau that pitted an 18-year-old high school student against school officials. A decision is expected before the end of June.

The Incident

On Jan. 24, 2002, Joe Frederick, 18, unfurled a banner near Juneau-Douglas High School proclaiming "Bong Hits 4 Jesus." School principal Deborah Morse took the banner, which officials said promoted marijuana use, and suspended him. He appealed, then took his case to federal court, saying his constitutional rights had been violated.

The Case

Judge backed the school district in 2003. Last year, the 9th U.S. Circuit Court of Appeals disagreed and found that Frederick had a right to display his banner, "however vague and nonsensical." The school district appealed.

The Issues

1. Can school officials punish student speech of this kind when it occurs off-campus during a semi-official school event? Officials say it undermined their anti-drug mission. Frederick's lawyers said it was not "disruptive" or "plainly offensive," two key tests set by the Supreme Court in the past.

2. Can the principal be held liable personally -- with monetary damages -- for violating the student's rights?

The Lawyers

For Frederick: Juneau lawyer Douglas Mertz, with support from the American Civil Liberties Union.

For the Juneau school district: Kenneth Starr, the former independent prosecutor whose Monica Lewinsky investigation led to the impeachment trial of President Clinton.

Note: Supreme Court briefs for Joseph Frederick

Note: The 9th U.S. Circuit Court of Appeals ruling - 19 page .pdf file

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