The Supreme Court does not hear too many student First Amendment cases. This may be a good thing. The last time the Court ruled in favor of students in a First Amendment case was 1969, when a very different judicial lineup said that a school in Iowa could not prevent students from wearing black armbands to protest the Vietnam War. The Court issued language in that case which continues to pop up in cases today: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

A recent case that the Supreme Court is now considering taking up actually involves speech that took place outside the schoolhouse gate. Court watchers are calling it the "Bong Hits 4 Jesus" case. Here's some commentary on the case from the Student Press Law Center.

It all started when a high school student in Alaska posted a large banner that said "Bong Hits 4 Jesus." It was off school property but visible by classmates and teachers who gathered outside for a school-sponsored event celebrating the Olympics. The general rule is that schools can censor student speech if it's part of a school-sponsored event (like the student newspaper) or disruptive to the educational mission. Schools can also censor speech that is vulgar, lewd or obscene. While the Bong Hits 4 Jesus banner probably drew guffaws and distracted the students from paying homage to the Olympics, the court said that the school could not censor it. Since the banner was kind of satirical and nonsensical and, at worst, made fun of the school's anti-drug policy, it was legal.

Even smart asses have First Amendment rights. That includes the Bong Hits kid. Since his banner was not on school property and was not vulgar or obscene, I am not sure why the Supreme Court has been sitting on the application to hear the case for so long. This means that someone on the Court wants to hear the case but that there is also opposition on the Court to taking the case.

Is there a way for the Supreme Court to rule against the student? Since the student's right to post the banner seems clear, the only way the Court can do that is by modifying the law governing students' rights. This has happened before. In the area of First Amendment rights for public employees who blow the whistle on government misconduct, the Supreme Court regularly takes up a case that allows the Court to scale back these rights and to make it easier for public employers to discipline whistle-blowers and others who speak out on the job. These cases are premised on an authoritarian principle: public offices need leeway to maintain an efficient workplace, even if the public employee's speech is extremely important.

According to the Boston Globe, the school district wants the Supreme Court to intervene because the banner made reference to drugs. "Superintendent Peggy Cowan said clarification is needed on the rights of administrators when it comes to disciplinary action of students who break the district's drug message policy. 'The district's decision to move forward is not disrespectful to the First Amendment or the rights of students,' she said. 'This is an important question about how the First Amendment applies to pro-drug messages in an educational setting.'"

One of the casualties of the war on drugs has been the Constitution. Unreasonable searches and seizures by the police are permitted in the interests of finding drugs, and courts have made all kinds of exceptions to general legal principles in order to fight drug use. Indeed, the legal papers submitted to the Supreme Court says that the law needs to be clarified in the area of drug-related speech by students. These papers were written by Ken Starr, the special prosecutor who published a soft-core pornographic account of President Clinton in 1998 in an effort to get him impeached. Now Starr is attempting to sully the Constitution by scaling back First Amendment rights for the very students who are taught every day that we live in a free country.