Saturday, February 19, 2011

First Amendment Victory for Pro-Marijuana Speech

Tuesday, March 14, 2006

Last Friday, the U.S. Court of Appeals for the Ninth Circuit sided with the Drug Policy Alliance and handed a resounding First Amendment victory to a Juneau, Alaska, high school student, Joseph Frederick, who had been disciplined by his school principal in 2002 for publicly expressing pro-marijuana sentiments.  Specifically, Frederick was suspended from school for five days for violating the school’s anti-drug / zero-tolerance policy and promoting marijuana use when he displayed a banner on a public street that read “Bong Hits 4 Jesus.”

When the principal informed Frederick of his suspension, he responded by quoting Thomas Jefferson and stating that he was simply exercising his constitutional right to free speech.  The principal, in turn, doubled Frederick’s suspension to 10 days.  Frederick sued the school for unlawful censorship, and was represented by ACLU of Alaska. He lost in federal district court and appealed his case to the Ninth Circuit, where he sought DPA’s assistance as a friend-of-the-court.

DPA filed an amicus brief with the Ninth Circuit in support of Frederick.  The DPA brief asserted that Frederick’s speech was protected under the constitution, highlighted the quarter century debate in Alaska over the legal status of marijuana, and pointed out to the court that siding with Frederick would neither render school anti-drug policies unworkable nor give a green light to adolescent drug use.  To this end, DPA noted that research shows that punitive, “zero-tolerance” school drug policies, like that enforced against Frederick, are ineffective, and cautioned that suppressing drug-related student speech could be counterproductive to the drug prevention strategy of encouraging open communication between students and teachers.  As DPA argued in its brief, “Punishing Mr. Frederick . . . not only infringed upon his First Amendment freedoms, but also squandered an opportunity for educators and administrators to cultivate mutual trust and respect with students and to foster rational discussion to address . . . drug abuse.”

A unanimous panel of the Ninth Circuit sided with Frederick, found that the high school violated his clearly established constitutional rights, and adopted much of the reasoning advanced by DPA.  Specifically, the court found that Mr. Frederick’s speech “expressed a positive sentiment about marijuana use, however vague and nonsensical” but that this pro-marijuana sentiment, unlike “vulgar, lewd [or] obscene” speech, was protected speech.  The court stated that pro-marijuana speech did not lose its constitutional protections simply because the speech “advocated a position contrary to [school] policy” and “unacceptable to school administrators.”

The official holding of the court can be stated as follows: A school may not punish and censure non-disruptive, off-campus speech by students just because the speech promotes a social message contrary to the one favored by the school.

The Ninth Circuit further held that the high school principal’s conduct in suspending Frederick for the content of his speech was so clearly unlawful that the principal was not entitled to qualified immunity, thereby opening the door for Frederick to sue the principal and the school for money damages.

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