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WASHINGTON � During oral arguments last week, the two newest justices on the U.S. Supreme Court seemed to be on opposite sides of a major free-speech case, forecasting possible sharp divisions. Morse v. Frederick, No. 06-278. The case began in 2002 when the Olympic torch passed through Juneau, Alaska. Students from Juneau-Douglas High School were allowed to watch. As the torchbearers approached, student Joseph Frederick, inetentionally avoiding school property, unfurled a banner bearing what he says was a nonsensical message: “BONG HITS 4 JESUS.” Deborah Morse, the school principal, interpreting it as a pro-drug message, told him to take it down and suspended him when he didn’t. Frederick’s suit against the principal has evolved into a potential landmark reassessment of Tinker v. Des Moines, the 1969 high court decision that declared students have a right to freedom of expression in schools, so long as it isn’t disruptive and doesn’t invade the rights of others. Former Solicitor General Kenneth Starr, arguing on behalf of Morse, seemed to win over Chief Justice John G. Roberts Jr. with the argument that school officials should be given deference when restricting student speech to advance a school’s educational mission. “Can’t the school decide that it’s part of its mission to try to prevent its students from engaging in drug use?” Roberts asked incredulously. But Justice Samuel A. Alito Jr. described that as a “very, very disturbing argument,” because granting such deference would give school officials a broad charter to punish student speech by simply declaring it contrary to their ever-expanding educational mission. “They can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions,” Alito said. Alito’s mention of fundamental values may be a nod to arguments Christian legal organizations have made, perhaps unexpectedly, in support of Frederick’s right to display the bong banner. Christian legal advocacy groups, are worried that if the court sides with Morse and narrows Tinker, religious expression will also be vulnerable. Justice David H. Souter seemed to be the most sympathetic toward student expression, repeatedly asking Starr what was disruptive about the banner, especially in an off-campus, nonclassroom setting. “What did it disrupt on the sidewalk?” Justice Anthony M. Kennedy also worried about giving too much power to school officials. “Suppose you have a mission to have a global school. Can they ban American flags on lapels?” In response, Starr said no, and repeated that “this case is ultimately about drugs and other illegal substances.” Frederick’s lawyer, Douglas Mertz of Juneau, insisted, “This is a case about free speech. It is not a case about drugs.” But Roberts interjected, “It’s a case about money. Your client wants money from the principal personally.” Frederick is seeking money damages for the constitutional violation.

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