High courts 

BONG HiTS lights up freedom of speech issues

If I've learned anything from Footloose, it's this: The new kid in school, often anxious to find his niche among already established social groups, is most likely to succeed once he's embraced his role as an outsider. If he can morph into a rebellious outsider, all the better (this will also make him more attractive to girls, but that's beside the point).

In 2002, a high school senior in Juneau, Joe Frederick, was one such deviant outsider. Depending on whom you ask, Frederick has since become an unlikely champion of civil rights or a self-righteous pain in the ass. On January 24, 2002, then 18-year-old Frederick rallied 13 other students in the creation and unfurling of a 14-foot banner reading BONG HiTS 4 JESUS as the Winter Olympic torch relay passed Juneau-Douglas High School on Glacier Avenue.

Frederick, then a senior, was a relative newcomer to Alaska; he had enrolled at Juneau-Douglas the year before (it was his third high school in three years), having come to the Last Frontier by way of Seattle, Wash., and, before that, Texas. Reflecting on his actions, Frederick once remarked: "I'm trying to think of why I pushed the envelope more than other people around here...Maybe [it's] because I'm new in the community...Whereas, if I'd grown up here...I'd be less likely to do it..."

For his mischief-making on Glacier Avenue, Frederick was suspended for 10 days by then-principal, Deborah Morse, who added a criminal trespass order to the suspension. Claiming the banner was an exercise in free speech and that his subsequent suspension was in violation of his First Amendment rights, Frederick sued the Juneau school district and Morse personally.

Okay, so it's not quite like debating the city council for the right to dance at your own prom, but Deborah Morse and the Juneau School Board v. Joseph Frederick did make it all the way to the Supreme Court. Not every high school hellion can claim their senior stunt caught the attention of the highest court in the land.

The case and its aftermath is the subject of James C. Foster's comprehensive and thoughtful new book, Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska's Capital. Foster, a political science professor at Oregon State University–Cascades chronicles the events of January 24th in scrupulous detail, giving the reader a context for the geographic, cultural, and (especially) judicial contexts in which the case is placed. What appears, at first, to be a typical high school prank, complete with sophomoric innuendo, unfolds into a complex discussion of just how much freedom of speech students have in public schools. Foster is an astute, thorough scholar. Accordingly, his book is replete with more than a hundred pages of endnotes and bibliography. In truth, there are times when his prose is more than a little turgid. Yet, for those with the patience to keep up with Foster, the rewards are many.

click to enlarge Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska’s Capital - James C. Foster - paperback, University of Alaska Press - 373 pages, $29.95
  • Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska‚Äôs CapitalJames C. Fosterpaperback, University of Alaska Press373 pages, $29.95

Beginning with the differing accounts of exactly what happened on Glacier Avenue, Foster points out how that very narrative is contested terrain. He uses Akira Kurosawa's 1950 film Rashoman as an entry point for discussing how Frederick and Morse's accounts differ from one another. This is important because while neither party disputes the raw fact that Frederick and his buddies unfurled the BONG HiTS banner, the details surrounding that undisputed fact differ wildly from one another and those differences form the foundation of each party's case. While Frederick insists he was conducting a freedom of speech exercise off school grounds (Glacier Avenue is across the street from, not directly on, Juneau-Douglas's campus), Morse believes the banner, however obliquely, promoted illegal drug use during a school event (students were taken out of class to watch the torch relay pass).

As Foster follows the events from Frederick's initial appeals to the school board (which upheld the suspension), to the Ninth Circuit (which sided with Frederick) and ultimately to the Supreme Court, Foster gives us a shrewd account of the workings of those judiciaries: their complexities, their players and how they evolved during the six-plus years of ensuing litigation.

The climax of the story is not the Supreme Court decision. A quick Internet search will tell you the 5–4 decision ruled in Morse and the school board's favor, with the majority decision stating that the First Amendment does not prevent educators from suppressing student speech, at a school-sponsored event, when that speech is reasonably viewed as promoting illegal drug use (whether or not the banner was actually promoting such use was the subject of immense debate). Foster's dissection of the 5–4 decision is the real gem of this worthy book, revealing just how divergent the views of the justices were on the case. Among the nine justices, a total of five separate opinions were written and Foster makes a compelling case for how the precedent set by Morse v. Frederick is a messy one that may ultimately undermine the First Amendment.

In his conclusion, Foster makes a case for how the dispute need not have gone to trial. "How might [those involved] break free from their self-defined rigid role," Foster writes, "and seize the surprising opportunities that might result?" Indeed.

James Foster discusses Bong Hits 4 Jesus at Fact & Fiction Thursday, March 24, at 7 PM. Free.

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