ACLU of Alaska Hails Court Ruling Affirming Student’s Free Speech Rights

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

ANCHORAGE – In a case brought by the American Civil Liberties Union of Alaska, a federal appeals court today strongly affirmed the free speech rights of a Juneau high school student who was suspended in 2002 for displaying a sign saying “Bong Hits 4 Jesus” at an off-campus event not sponsored by the school.

“This decision is a strong restatement of well-established free speech law,” said Michael Macleod-Ball, Executive Director of the ACLU of Alaska. “Students do not give up their free speech rights while in school as long as that speech does not disrupt school activities.”

In its ruling in favor of the student, Joseph Frederick, the Ninth Circuit Court of Appeals said that speech, even if contrary to school policy, cannot be restricted unless the speech disrupts school activities. The court also ruled that to limit such speech was a violation of the student’s constitutional rights. Alaska has long supported an expansive view of individual rights under its state constitution, although this decision interpreted federal, rather than Alaskan, law.

The case arose in 2002 when an Olympic Torch Relay passed by Juneau-Douglas High School. The school permitted students to leave the building to watch the relay which was sponsored by Coca-Cola. Frederick said he held up the sign because he thought it would be humorous and might get some publicity. Although Frederick was not on school property at the time, the school principal crossed the street to demand he lower the sign. When Frederick refused, citing his right to free speech, the principal grabbed the sign from him and suspended him for five days. At a later discussion when Frederick cited Thomas Jefferson, the principal doubled the suspension to 10 days.

The court based its decision on the concept that students retain free speech rights at school events as long as that speech does not substantially disrupt school activities. The ruling relied most heavily on a landmark 1969 Supreme Court decision, Tinker v. Des Moines, in which students were punished for wearing black armbands to protest the Vietnam War. The ACLU of Iowa represented the students in that case.

In the current case, school officials argued that speech opposed to the school’s anti-drug policy could be restricted. Judge Andrew Kleinfeld, writing for the court, rejected that argument, saying that only disruptive speech could be restricted, with certain limited exceptions. The court assumed for purposes of the argument that the sign contained a pro-drug message, even though that was not Frederick’s intent. The court gave two exceptions to the student free speech rule – for plainly offensive speech and for speech contained within a school-sponsored venue, such as a school newspaper.

“This decision, while welcome, does not make new law,” Macleod-Ballsaid. “Iit simply applies firmly established precedent to the facts of this case.”

Frederick is now a student at the University of Idaho. The Ninth Circuit remanded the case to the Federal District Court in Alaska for further proceedings involving a determination of damages. Frederick is represented by Attorney Douglas Mertz of Juneau, who serves as cooperating attorney for the ACLU of Alaska