Legal Commentary

The then-18-year-old  Alaskan who held up that infamous "Bong Hits 4 Jesus" banner has received a $45,000 settlement from the school district according to this story in the Anchorage Daily News.  Apparently the student, Joseph Frederick, had additional claims that weren't decided by the Supreme Court including a claim that his free speech rights were violated under the Alaska Constitution, which states: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."  The settlement also reportedly requires the school district "to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech."

I became tangentially involved in this case when it was before the 9th Circuit by writing an amicus brief for the Student Press Law Center in support of the student.  When Kenneth Starr later stepped in on behalf of the school district and filed for cert, I repeatedly assured the SPLC that the Supremes would never take the case -- it's a far too messy vehicle, it's not even clear the kid was at school, and, most importantly, nobody has any idea what this crazy sign meant!  I, of course, soon ended up writing another amicus brief when the petition was granted. 

The interesting question I think this settlement raises is whether Frederick had broader free speech rights under Alaska's Constitution than he had under the U.S. Constitution.  It certainly seems doubtful that the Alaska Supreme Court would have concluded -- as the U.S. Supreme Court did -- that there is a free speech exception if public school students engage in speech that can reasonably be construed as advocating illegal drug use.  The "on all subjects" language in Alaska's provision strikes me as contrary to such a specific subject-matter based exception.  I wonder if this might signal a trend where citizens begin relying more on their state civil liberties than on their federal ones.

I'm also intrigued by the mandated forum on student speech.  After this case, what guidance can this "neutral constitutional law expert" offer to administrators, teachers and students?  When the next banner is raised should the principal feel safe in confiscating it and punishing the student or is there still too much risk that she would be violating the student's rights under the Alaska Constitution.  And the next time a student wishes to express himself can he take much comfort in the caveat by Justices Alito and Kennedy that nothing in the Court's opinion supports "any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"  How much protected student speech will be chilled? What's a well-meaning, law-abiding principal to do?   And we all thought "Bong Hits 4 Jesus" was confusing and ambiguous . . .