TRANSCRIPT: Drugs for a Deity

"I tried to debate her over this in her office, asking, 'Why am I being suspended? This is freedom of speech!'"

FREDERICK: I tried to debate her over this in her office, asking, “Why am I being suspended? This is freedom of speech, you know, and I don’t see how I can be punished for this!” And I was simply told, no, that this is not freedom of speech, that I don’t even have freedom of speech. I quoted Thomas Jefferson to her, and then she punished me further by adding onto my suspension.

MIKE: On the morning of January 24th, 2002, 18-year-old Joe Frederick had a plan.

MATT: Joe was a senior in high school. And he knew, from a class he took on government, that students have some free speech rights.

MIKE: Some free speech rights. But how far does that go? Are there limits on the First Amendment in school? And why does it matter? Joe is about to find out.

MATT: I’m Matthew Schwartz.

MIKE: I’m Mike Vuolo.

MATT: And this… is Unprecedented.

MATT: Everybody has that one teacher who really inspires you, makes you see the world differently, makes you think. For Joe, that teacher was Gary Lehnhart, who taught a class called American Justice at Juneau-Douglas High School in Alaska.

MIKE: Mr. Lehnhart had an exercise that he liked to do with the students. It involved buttons with different phrases on them. And these phrases push the boundaries of what you can say in school.

LEHNHART: So these buttons range from a button that challenges a teacher, for instance, says: Mr. Lehnhart Sucks. Another button had an alcohol reference on it. I had one that had a picture of two women—naked, holding a surfboard—and it said: Surf Naked. And then I had a woman, almost nothing on, that said: Dress Code This.

MIKE: About half the students get to wear the buttons. They stand up and walk to the front of the classroom.

LEHNHART: One side of the room I have a sign that says “Constitutionally protected”; on the other side of the room I have “Not constitutionally protected”—or it can be censored.

MATT: In between the two signs, on the blackboard, are numbers from 0 to 9, representing the number of justices on the Supreme Court. The students have to position themselves where they think the case would end up if the Supreme Court ruled on the constitutionality of their button.

LEHNHART: Either this speech is protected, I’m going to go stand at 9-0, or this speech probably is protected, I’m going to go stand at 6-3 in favor of the speech, or vice versa: This is not protected speech. And the buttons are intended to be all over the place, and the kids generally are all over the place.

MIKE: After the kids have arranged themselves along the spectrum, the rest of the students—who have been sitting there watching all this—get to move them around.

LEHNHART: Then the two of them engage in a little debate about who’s right. And this goes on for quite a while, and some kids are getting moved back and forth, and I’m usually actually quite surprised by how conservative the kids tend to be when you get right down to it, and they tend not to support that much speech.

MATT: Mr. Lehnhart had used this lesson for years. And for years students always arranged those buttons along that whole 0 to 9 spectrum. But in 2001, along comes a student who’s different from all the rest—Joe Frederick.

LEHNHART: It was quite surprising. I’d never had anyone react to it like Joe did. When it was his turn at the end—and he made a very big show of it—he walked up there and he started at the end of the censored speech person and he kind of pushed that person towards the other side, and then he just kept going and he kept gathering people as he went.

MIKE: Mr. Lehnhart Sucks?

MATT: Protected.

MIKE: Naked women? Dress Code This?

MATT: Protected.

LEHNHART: Until he pushed everybody over there, on the protected speech. And, you know, at that point what he was saying was he believed that all student speech should be protected.

MIKE: That lesson stayed with Joe. He thought about what you could and couldn’t say in school. He later spoke with the ACLU about what was going through his mind at the time.

FREDERICK: I had been in a government class at the high school. The semester before we’d done projects on the bill of rights and famous cases. And I just seemed to look around me, and it just didn’t seem like I had the rights that my textbooks said I did. In America, from the time you’re in primary school, you’re taught that you have the freedom of speech. And everybody just assumes, I have freedom of speech—you know, that’s nice—but nobody ever really uses it. So therefore they don’t really know that they have it. So I was sort of curious to find out more precisely exactly what these rights meant: what I could do, what I couldn’t do.

MATT: Joe is hatching a sort of experiment to prove that the First Amendment is as robust and broad as he believes it to be. He wanted to come up with a phrase that might test the limits of free speech—he even workshopped his ideas with Mr. Lehnhart—but Joe kept the exact plan to himself.

LEHNHART: I had no idea what Joe was up to. I knew Joe was up to something, because I remember some moments where he came after class and he threw some ideas out about what would be protected. But he never threw out the idea to me that he was going to paint it on a sign and put it in the parade.

MIKE: Yeah, there is a parade involved. Joe wasn’t the kind of person to do anything in half-measures. It’s January of 2002. The Winter Games are coming to Salt Lake City, but first the Olympic torch is gonna pass through Alaska. Juneau is about to get its brief moment in the spotlight.

LEHNHART: The course went by the high school and so the principal decided that this would be a great thing to let all the students out of their second hour class to stand on both sides of the road and cheer as this torch runner went by.

MATT: Joe is standing across the street, off school grounds.

LEHNHART: He was standing in front of a teacher’s house, actually.

MATT: Standing right there on Glacier Avenue, waiting for the torch to approach, waiting for the TV cameras to point in his direction, waiting—with a 14-foot banner. And as the runner approaches, holding the torch high, Joe and his friends unfurl the banner. It reads: BONG HITS FOR JESUS.

MIKE: Bong hits for Jesus.

MATT: For Jesus.

MIKE: Like the marijuana accessory.

MATT: Like the hits that you take off of a bong.

MIKE: Am I supposed to know what Bong Hits for Jesus means?

MATT: No, no. Because no one knew exactly what it meant. But Joe’s principal was not having it. She sees the banner. She runs across the street.

FREDERICK: Because she decided that she felt it was inappropriate and offensive, that she decided to confiscate it.

MATT: Principal Deborah Morse gives Joe a five-day suspension.

FREDERICK: I tried to debate her over this in her office, asking, “Why am I being suspended? This is freedom of speech, you know, and I don’t see how I can be punished for this!” And I was simply told, no, that this is not freedom of speech, that I don’t even have freedom of speech. I quoted Thomas Jefferson to her, and then she punished me further by adding onto my suspension. I was really confused, ‘cuz I had thought that I had these rights.

MIKE: Here’s Joe’s teacher, Gary Lehnhart.

LEHNHART: Slowly, over the next few days, I remember the principal having a conversation with me about it and wondering whether I thought that she did the right thing or that she was allowed to censor his speech, and I said, you know, impossible to know for sure.

MATT: Joe’s dad contacts the ACLU, which finds Joe a lawyer, and together they try to work something out with the school board: Does Joe really need to be suspended? How about just a good talking to?

MERTZ: Which is what the principal should have done … 

MATT: This is Joe’s attorney, Doug Mertz.

MERTZ: … used it as a time to educate him about what responsible conduct is. We got very little sympathy, so eventually we had to bring a suit for violation of his First Amendment rights.

MIKE: At the time, no one imagined that Joe intended to take a stand. Here again is Joe’s teacher Gary Lehnhart.

LEHNHART: Nobody really, I think, saw that, at that moment, that this was like a big First Amendment challenge. I think people just saw it as Joe doing something crazy.

MATT: Principal Morse saw this kid who likes to challenge the status quo, and who—during Juneau’s shining moment—was holding up a banner that talked about bong hits for Jesus.

MIKE: She thought he was advocating drug use. Joe insists that’s not what he was doing.

MATT: We know that kids have free speech rights, but how far do those rights go in school? Joe set out that morning wondering if the First Amendment would protect him.  Joe would get his answer from the Supreme Court.

MIKE: After the break, the Justices ask: Does anybody know what Bong Hits for Jesus means? Anybody?

MATT: Stick around.

(MATT: It’s important here to note that we first aired this episode a few years ago, when Justice Ruth Bader Ginsburg was still with us. You’ll see why that’s important in a moment. Just know that we haven’t lost our minds. Okay, back to the show!)

MATT: Nina, I have to ask you some questions now.

NINA: Mm-hmm.

MATT: And you can feel free to say “No Comment.”

NINA: Mm-hmm.

MATT: But just for some context, I need to know. Do you smoke marijuana?

NINA: No.

MATT: Have you ever smoked marijuana?

NINA: Once I had three drags.

MIKE: Did you inhale?

NINA: I inhaled, didn't do a damn thing for me. But all during my — my yout — I basically did not. I abstained, because I was writing a long profile of J. Edgar Hoover. And Hoover tried to have me fired. And I was a little paranoid, I thought that if I ever smoked marijuana, there might be somebody around who saw it, and I could get in real trouble. And so I just completely abstained.

MIKE: What was the context in which you had three drags off of a joint.

NINA: I finally said when I was in my middle thirties, something like that. I want to just do this once and see what it does. And it was unpleasant, it hurt my chest and it didn't have any measurable effect that I could tell.

MATT: Well, they say the first time, a lot of times you don't feel it.

NINA: Well, now that it's legal I have on occasion tried THC, twice tried it to go to sleep. And it doesn't work for me either (laughter).

MATT: Really? That's a lot of tolerance.

MIKE: Do you have problems falling asleep?

NINA: Yes.

MATT: Is it because you're constantly thinking about the world?

NINA: Supreme Court?

MATT: Supreme Court.

NINA: No.

MATT: Is it because Ruth Bader Ginsburg calls you late at night to talk about boys?

NINA: No. No! (raucous laughter)

MATT: Okay, so NPR’s Nina Totenberg isn’t exactly an expert on marijuana.

MIKE: But maybe she could offer some insight into what “Bong Hits 4 Jesus” means.

NINA: Well, that's what I wanted to know. And when I interviewed Joe Frederick, I said, "What does that mean?" And he said, “I just tried to think up a bunch of stuff that would not say much of anything, just to have a message out there, some ambiguous message." I thought, basically, he was trying to find a, a very ambiguous message that might piss off a few people.

MIKE: I think he strung a few words together that he thought would troll the administration.

NINA: Yeah, that's probably right. He had Jesus, he had Bong Hits. And in between he had 4. (laughter)

MATT: In fact, Joe Frederick talked about the phrase in his interview with the ACLU. Here’s what he said.

FREDERICK: The words on the banner were insignificant. To me it’s an absurd statement. It was meant to be subjectively interpreted by the reader. But what the banner really said was not what was printed on it; what the banner said was I have the right to free speech, and I’m asserting it. It’s like, here I am—I have free speech, and here’s my sign to prove it.

MATT: But does Joe “have free speech” at a school event? In the late 1960s, the Supreme Court said that students don’t shed their constitutional rights at the schoolhouse gate. But that doesn’t mean that they can say anything.

MIKE: Yeah, the students in that case—Tinker v. Des Moines—they were wearing black armbands to protest the Vietnam War. And the Court said that was fine. You have the right to express your opinion at school, as long as you’re not being disruptive.

MATT: So, is a banner that reads “Bong Hits 4 Jesus” disruptive in some way? In 2002, attorney Doug Mertz traveled from Alaska to Washington, DC to argue that no, it isn’t disruptive—that even such an absurd display as this Bong Hits banner should be protected.

CJ ROBERTS: We’ll hear argument first today in case 06-278, Morse versus Frederick. Mr. Mertz?

MERTZ: Mr. Chief Justice, and may it please the court.

MATT: Let’s start with Justice Stephen Breyer, who seemed pretty sympathetic to Joe Frederick. But Breyer was really struggling with how to go about balancing Joe’s free speech rights on one hand, and preventing chaos at school on the other.

BREYER: And so I guess what I’m worried about is a rule that takes your side; we’ll suddenly see people testing limits all over the place in the high schools. But a rule that’s against your side may really limit people’s rights on free speech. That’s what I’m struggling with.

MATT: Doug Mertz answers by invoking the Tinker case from 40 years before.

MERTZ: I believe the answer is that the Tinker case as we understand it struck a very wise compromise between allowing school officials to have complete discretion to suppress student speech and the student’s right to speak in a non-disruptive manner. The Tinker case has stood the test of time for … 

SCALIA: Well, you can say that, but the subsequent cases seem to me to try to cut back on it. I mean it’s stood the test of time in the sense that it hasn’t been overruled.

MATT: That was Justice Antonin Scalia at the end there.

MIKE: So Mertz is saying that the Tinker case has been around for four decades. And that a banner with Bong Hits 4 Jesus is just like a black armband. It’s not disruptive. But Scalia, being Scalia, has a comeback. Tinker is only still around, he says, because we haven’t overruled it yet.

MATT: Yeah, they haven’t overruled it. But in the decades since Tinker was decided, the Supreme Court has made it clear to students that, you know what: sometimes your speech is disruptive. And we can’t have that in the schools. Here’s what constitutional scholar Garrett Epps told me.

EPPS: There's lots of room for limits, and the court over the years, in applying Tinker, has found lots and lots of situations where of course the school would want to not permit students to speak. You know, there's a case called Bethel School District v. Frasier in 1987 where a student made this exceedingly silly speech that had a lot of double entendres in it, you know, so that people could infer that he was talking about sex. And the court said, no, that's fine, you can discipline him because it's in a school sponsored forum.

MIKE: I can understand that. I mean, sexually suggestive language during a speech to the whole school? Yeah, that’s disruptive.

MATT: Well, that’s sex. What about drugs? Let’s take Joe at his word and assume that he wasn’t trying to promote drug use. But it’s not unreasonable to interpret the banner as though he was.

MIKE: Yeah, I mean Joe’s principal certainly interpreted it that way.

MATT: Here’s Justice Breyer with a long windup and then a question for Joe’s attorney Doug Mertz.

BREYER: What actually happened is the principal looks across the street, a 15-foot banner goes up at what’s supposed to be a school event with everybody right together. The principal thinks: Of course adolescents and post-adolescents sometimes like to test limits, and if the kids go around having 15-foot banners making a joke out of drug use, that really does make it a little tougher for me to convince the students at this school not to use drugs, and particularly putting up 15-foot banners. I don’t know why everybody wants to get away from that because I think you would have had a very different case if in fact it had been a whisper or if it had been a serious effort to contest the drug laws. It wasn’t either. It was a joke. We have the message plus the means plus the school event. Now, what’s your response?

MERTZ: My response, Your Honor, is that, first of all, it was a 14-foot banner, but … 

BREYER: That’s an excellent response, I think. (laughter)

MERTZ: One of the weaknesses that I have as an oral advocate is my inner stand-up comedian tends to come out. So I couldn’t resist a little humorous jab. But some of the justices seemed unprepared. You know, they’re very busy people. They depend on their law clerks for summarizing cases, but some of them really did not understand the underlying facts.

MATT: Mertz seized on this moment of levity to try to educate the justices.

MERTZ: In fact, what it was, was a person displaying this banner in a quiet, passive manner that didn’t interfere with anybody’s observation.

MATT: Justices Anthony Kennedy and David Souter were trying to figure out what exactly Joe was supposedly disrupting. Here they are questioning the attorney for the government, Kenneth Starr.

KENNEDY: Disruptive of what? Disruptive of the classroom order? There was no classroom here.

STARR: This is a school authorized event, this is education outside of the classroom. It was essentially a school assembly out of doors. It was essentially … 

SOUTER: Well, I can understand if they unfurled the banner in a classroom that it would be disruptive, but what did it disrupt on the sidewalk?

STARR: The educational mission of the school.

SOUTER: No, but I mean, that’s at a level of generality that doesn’t get us very far. I mean, what specifically did it disrupt? Did it disrupt the parade, did it disrupt teaching? I don’t see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school. Is that what you mean by disruption?

SCALIA: I think we’re using “disruption” in two different senses here and we should probably separate the two.

MIKE: Here’s Justice Antonin Scalia.

SCALIA: One sense is disrupting the class so that whatever is being taught can’t be taught. But you’re also using it in the sense of undermining a general message that the school is trying to get across: Obey the law, don’t use drugs, whatever. Maybe we should have a different word for—the first is disruption. Disruption is a, is a funny word for the second. Let’s call it undermining instead.

MATT: Joe’s attorney, Doug Mertz.

MERTZ: The second of them might better be called allowing competing viewpoints.

SCALIA: So you think undermining is perfectly okay? You would never consider undermining to be disruption and therefore bad? Right after a class on drugs, he can be standing there in the hall and say: This class was ridiculous, drugs are good for you, I use ’em all the time, I urge all of you. That's perfectly okay? That's not undermining?

MIKE: So Joe might not have been physically impeding any actual classroom instruction—but there’s a different kind of disruption: Maybe he was, to use Scalia’s word, “undermining” the anti-drug message of the school.

MATT: Yeah. And, by a vote of 5-4, the Court ruled that Joe Frederick’s banner, which could be seen as undermining the school’s message, was indeed disruptive.

(NPR music)

SIEGEL: This is All Things Considered from NPR News. I’m Robert Siegel.

BLOCK: And I’m Melissa Block. The Supreme Court issued three major First Amendment opinions today. NPR’s Nina Totenberg reports.

TOTENBERG: Writing for the Court, Chief Justice Roberts said the banner was cryptic, but the principal’s interpretation of it as a message advocating drug use was reasonable.

MATT: Here’s Chief Justice John Roberts, reading the opinion from the bench. He starts with that famous line from the Tinker decision:

ROBERTS: Students do not shed their First Amendment rights at the school-house gate.

MATT: But he quickly qualifies it:

ROBERTS: The nature of those rights has to be assessed in light of the special characteristics of the school environment. The rights of students at school are not the same as the rights of adults in the community at large. Based on the special characteristics of the school environment, and the government interest in stopping student drug abuse, we conclude that schools may restrict student expression promoting such abuse.

MATT: That was the majority opinion. But four justices on the court disagreed. Justice John Paul Stevens derided the court’s “feeble effort,” he said, “to divine” the “hidden meaning” of the banner. “It takes real imagination,” he goes on, “to read a ‘cryptic’ message with a slanting drug reference as an incitement to drug use.”

MIKE: Yeah, the dissenting Justices say that when a message is this cryptic, the law really should err on the side of the speaker.

MATT: And in general, we do err on the side of the speaker. But, you know, schools are different.

MIKE: Look, I get it. I’m a parent and schools, you know, they’re not gulags, but they sure ain’t democracies. Here, again, is law professor Garrett Epps.

EPPS: I always ask my First Amendment students how many of them have lived in a totalitarian country. Sometimes one or two hands go up but usually none. And then I say, "That's completely wrong, you've all lived under totalitarianism because you went to high school."

SCHWARTZ: So in the wake of Tinker, schools have tended to be afraid of—and tried to censor—a few specific topics of discussion.

EPPS: Well sex. I would say sex, sex, sex.

SCHWARTZ: Sex.

EPPS: Sex … 

VUOLO: Drugs.

EPPS: … and drugs and violence.

VUOLO: So, all the things that teenagers think about all the time are the things they can’t talk about in school.

MATT: There’s a little epilogue to this tale. Remember how this all started, with the buttons in the class, moving the people around?

MIKE: Mm-hmm.

MATT: Well, Joe Frederick is back at the school: not as a student, and not as a teacher, but as part of that lesson. Here’s Gary Lehnhart.

LEHNHART: I often start the lesson off by saying, look, this one you know. We know where this one goes, according to the Court. But you don’t have to agree with that. And you can move it to where you wanna move it and express, like many of the Justices did in this case, why they think it should’ve been protected speech.

MATT: And maybe, someday in the future, another kid with all the moxie of Joe

Frederick will come along. And that student will push the Bong Hits for Jesus button all the way to 9-0—protected. And maybe that student will go on to become the fifth vote on the Supreme Court.

MIKE: And that’s the brilliance of our system. Justice Scalia said that the Tinker case has only stood the test of time because we haven’t overruled it yet. Well, the same is true of this Bong Hits decision and every other case that we’ve discussed. Precedent is important but it’s not permanent. It evolves because we evolve. So go ahead and advocate whatever drug you want for whichever messiah you choose. Just make sure that, for now at least, you’re outside that schoolhouse gate.

MATT: Unprecedented was produced by me — Matthew Schwartz — and my co-host, Mike Vuolo.

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