Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska's Capital

by James C. Foster

Overview

In January 2002, for the first time, the Olympic Torch Relay visited Alaska on its way to the Winter Games. When the relay runner and accompanying camera cars passed Juneau-Douglas High School, senior Joseph Frederick and several friends unfurled a fourteen-foot banner reading "BONG HiTS 4 JESUS."

An in-depth look at student rights within a public high school, this book chronicles the events that followed: Frederick's suspension, the subsequent suit against the school district, and, ultimately, the escalation of a local conflict into a federal case. Brought to life through interviews with the principal figures in the case, Bong Hits 4 Jesus is a gripping tale of the boundaries of free speech in an American high school.

Product Details

ISBN-13:	9781602230897
Publisher:	University of Alaska Press
Publication date:	10/15/2010
Edition description:	New Edition
Pages:	373
Product dimensions:	6.00(w) x 8.90(h) x 1.00(d)

About the Author

James C. Foster is a professor at Oregon State University. He has taught and written about aspects of judicial politics for over thirty years.

Read an Excerpt

Bong Hits 4 Jesus

A Perfect Constitutional Storm in Alaska's Capital

---

By James C. Foster

University of Alaska Press

Copyright © 2010 University of Alaska Press
All right reserved.
ISBN: 978-1-60223-089-7

---

Chapter One

Harmonic Convergence in Juneau (In)famous for Fifteen Minutes

Every Supreme Court case begins as a story. At the heart of each story is a quarrel—a fight. Fundamentally, these fights can be over the nature of the story itself. The very narrative becomes contested terrain. When "truth" itself is at issue, more than mere facts are up for grabs. The devil may reside in the details, but Supreme Court cases can turn on the manner in which a majority of the justices connects the discrete dots. Morse v. Frederick can be described as originating from an incident that occurred midmorning, Thursday, January 24, 2002, as the Olympic torch relay passed Juneau-Douglas High School (JDHS) on Glacier Avenue. But this description begs crucial questions. Worse, it reduces a complex and contradictory social reality to a stark series of isolated facts—time, date, place, and event—that only Joe Friday could love. Joe Frederick's and Deborah Morse's stories are a lot messier than "just the facts." Their stories also are more interesting, and revealing. The roots of their dispute run deep. Unbeknownst to the people who were generating it, a perfect constitutional storm was brewing in Juneau, Alaska.

Pride Goeth before a Fall

A renowned Japanese film director provides a useful way of making sense of this storm. Akira Kurosawa's 1950 film Rashomon explores how stories we tell are suffused with self. For Kurosawa, when we recount an event, we are revealing who we are. Rashomon revolves around two events: a rape and a killing. Nevertheless, Kurosawa is not interested in either of these two stubborn facts per se—any more than the raw fact that Joe Frederick and his buddies unfurled a fourteen-foot banner reading BONG HiTS 4 JESUS as the 2002 Olympic torch relay passed Juneau-Douglas High School on January 24, 2002, concerns me here. Both Rashomon and Morse v. Frederick are about humans as storytellers. "[I]n telling and in the retelling, the people reveal not the action but themselves." In other words, both Rashomon and Morse v. Frederick engage the complementary questions: What do we make of our life experiences? How do we define ourselves in the process of defining our reality?

Donald Richie is a student of Japanese cinema. He has written extensively on Kurosawa's work. He reads Rashomon broadly in terms of Kurosawa's most basic artistic purpose: "Here then, more than in any other single film, is found Kurosawa's central theme: the world is illusion, you yourself make reality, but this reality undoes you if you submit to being limited by what you have made." Richie's rendering of Kurosawa contains two elements. First, we are the authors of the reality we occupy. Second, we need to take care not to be trapped by our own certainties. While transcribing my interview with Sally Smith, Juneau's mayor from 2000 to 2003, I was struck by how pertinent Richie's insights are to my project of elucidating the "iceberg" of which Morse v. Frederick is merely the tip. Mayor Smith talked about reacting with "total disappointment" that the torch relay had become a "national brouhaha":

As the mayor of the community, so excited about having the torch in Alaska, for the first time, and the only place it was coming in Alaska, and to have this get blown up into something—I just shook my head, and went "Whose egos are having a problem here?"

Dueling egos and competing stories: this is how constitutional brouhahas like Morse v. Frederick are spawned. Kurosawa's cinematic insights into human beings go beyond discerning the paradox that we are agents prone to trapping ourselves within our own creations. According to Richie, Kurosawa suggests that the reason we tend to ensnare ourselves is pride. We tend to identify with the tangled web we have woven, investing our creations not only with credibility but with self-esteem. As Richie observes:

All the [Rashomon] stories have in common one single element—pride.... Rashomon is like a vast distorting mirror or, better, a collection of prisms that reflect and refract reality. By showing us its various interpretations ... [Kurosawa] has shown first, that human beings are incapable of judging reality, much less truth, and, second, that they must continually deceive themselves if they are to remain true to the ideas of themselves that they have.

Acting out scripts we ourselves author, we become the characters we create, locked into roles of our own design. "Very often it is the wide discrepancy between the situation as it seems to others and the situation as it seems to the individual that brings about the overt behavior difficulty.... If men define situations as real, they are real in their consequences." It is as though we are walking reifications, agents who have forgotten our own agency.

In light of Richie's take on Kurosawa, one might conclude that Joe Frederick and Deborah Morse were destined to clash. That certainly is one possible reading of their story. Paraphrasing art critic Parker Tyler, Richie articulates this determinist view in compelling terms, terms with which Mayor Smith appears to agree. Here is Richie:

Each [Rashomon character] is proud of what he did because, as he might tell you: "it is just the sort of thing that I would do." Each thinks of his character as being fully formed, of being a thing, like the rape or the dagger is a thing, and of his therefore (during an emergency such as this) being capable of only a certain number of (consistent) reactions. They are in character because they have defined their own character for themselves and will admit none of the surprising opportunities which must occur when one does not. They "had no choice"; circumstances "forced" their various actions; what each did "could not be helped." It is no wonder that the reported actions refuse to agree with each other.

Here is Sally Smith's take on how "destiny" played out in Juneau: "[It's] just a harmonic convergence of all the wrong things ... There, again, what a perfect storm: you know, a wrong time to be wrong, and the wrong person to be wrong with."

Perceived in Richie's and Smith's terms, Joe Frederick's and Deb Morse's collective story takes on the proportions of a Greek tragedy—with a twist. The twist being that, unlike characters in Greek drama, who are driven by fatal flaws beyond their ken and control, the failings of Frederick's and Morse's characters, like those of Kurosawa's characters, are of their own manufacture. While grappling with Frederick's and Morse's stories for some time, I have grown increasingly convinced that their interactions are not a simple matter of "he said/she said." So, at first glance, a determinist account is somewhat attractive. Richie's and Smith's view breaks out of a dichotomous mental straitjacket that confines one rigidly to right/wrong, truth/lies, good/bad dyads, and joins Frederick and Morse in a confrontational dance in which neither partner led (or both did, blindly). In circumstances in which each side claims a monopoly of What Really Happened, finding a way to bridge the apparently unbridgeable is welcome. Morse v. Frederick as an act of nature: Fate—even when personally contrived—has its attractions. It is comfortable to escape blame; to abdicate control and release responsibility for one's actions.

I am troubled, nevertheless, that while enabling escape from the puerile blame game, this quasi-fateful explanation also diminishes human volition and, with it, human responsibility. I use diminishes because Richie (and, I suspect, Mayor Smith) never rejects outright humans' capacity to rewrite our respective scripts. In the middle of his statement of the determinist view quoted above, note that Richie uses the word "will": "They are in character because they have defined their own character for themselves and will admit none of the surprising opportunities which must occur when one does not" (emphasis added). I believe that we choose not to choose, most of the time. I also believe that recognizing how people routinely abdicate choice is not the same as asserting that humans are incapable of choosing. The trick, or perhaps more accurately the challenge, is to step outside of one's role—which also is one's self. Doing so is no easy matter. Doing so clearly entails being a "traitor" to one's self, divorcing who you are from a range of potentials as yet only dimly perceived—and perhaps having to do so amid exigent circumstances. The reward of doing so is, as Richie observes, "surprising opportunities."

Just because redefining our character is daunting does not relieve us of the human duty of undertaking the task. Richie names failure to undertake rewriting our script as "bad faith." And, he adds, "[w]e know what Kurosawa thinks about this. From Sugata Sanshiro on, his villains have been in bad faith; that is, they see themselves as a kind of person to whom only certain actions, certain alternatives are open. In the effort to create themselves they only codify." In the process of behaving in character, Frederick and Morse not only fixed on a collision course, they foreclosed other possible interactions. Unfortunately—perhaps even tragically—by acting in bad faith they lost sight of the "important corollary" to Kurosawa's central theme, namely: "you are not ... truly subject to this reality, you can break free from it." On occasion, I have thought of this whole episode in terms of an irresistible force (Frederick) meeting an immovable object (Morse). But that view is entirely too mechanistic. Although their conflict often took on a patina of inevitability, in the final analysis almost everything about Joseph's and Deborah's interactions was avoidable. Rashomon's central ambiguities are set in a bamboo grove. Frederick's and Morse's drama of ambiguity initially unfolded in a rain forest.

"Juneau"

Juneau is a state of mind. That sentence is not a travel agency slogan. Rather, it is designed to shift our frame to facilitate understanding Juneau in psychological and interpersonal terms, as well as a physical place. To be sure, Juneau is a particularly stunning location. How many venues can offer the amenities of a small university town (University of Alaska Southeast) contained within a national forest (Tongass)? Originally a gold-mining town, "[t]hese days, in summer, cruise ship passengers have replaced miners, funneling down the gangplanks of huge floating cities like the Regal Princess and Noordam, to fill the attenuated downtown, wedged between the [Gastineau] channel and the 3,500-foot summits of Mount Juneau and Mount Roberts."

Juneau remains Alaska's capital—for the time being. The perennial potboiler over moving the capital continues to simmer. In 1994, former two-term Alaska governor Jay Hammond offered his typical candidly irreverent take on the mix of logic, expediency, and self-interest fueling then recent versions of an ongoing debate:

apital move proponents argued since half of Alaska's population lived in Anchorage, the capital should be relocated in the area of greatest population density and easiest access. Juneau, they argued, unconnected by road to any other Alaskan community, was inconvenient and too expensive to reach by air for citizens who wished to berate the legislature and governor. This faction maintained that government would improve by removing the legislature from its sequester in remote, often-fog-bound Juneau and hauling it north, where, "if we could just get our hands on those rascals' throats, they might shape up." Actually, the motives of many "pro-move" advocates were less noble. Land speculators, businessmen, contractors, and labor unions salivated over prospects of building a "Brasilia of the North." No matter its costs, the prospect of snatching the economic plum that Juneau had snatched from Sitka years before led many to invest heavily in hopes of tapping state oil revenues to finance their aspirations. Juneauites not only opposed the move; they knew as long as there remained a threat of moving the capital, potential local development prospects were grounded in Juneau, while they soared elsewhere.

Threats to relocate the capital continue. Before she resigned as governor, Sarah Palin made no secret of her interest in shifting state government north, to Anchorage or, preferably, to the Matanuska-Susitna (Mat-Su) Borough where the city of Wasilla is located. During the 2008 legislative session, Republican Representative Mark Neuman, from Wasilla, introduced House Bill 54 that purported to establish a competition that would allow communities from around the state to bid on the opportunity to build a new legislative hall building. Many saw the proposal as a transparent attempt to quit Juneau. Neuman's bill died at session end without coming to a floor vote. Nevertheless, incrementally, state government officials continued to leave town.

While working steadily to marginalize Juneau in state politics, Governor Palin did not hesitate to use Juneau as a picturesque backdrop for her 2007 bid for a national political role. Learning that two cruise shiploads of conservative Republican luminaries, organized respectively by Rupert Murdoch's Weekly Standard and the late William F. Buckley Jr.'s National Review, were scheduled to visit Juneau that summer, Palin launched a charm offensive housed in the very governor's mansion where she refused to live on a regular basis, symbolically rejecting remote Juneau in lieu of the "real" Alaska. The situation was a convergence of opportunity and ambition. John McCain's presidential campaign was desperately seeking a woman with conservative credentials and star power to join him on the ticket. Sarah Palin was looking for a larger stage than the largest state in the Union.

In a couple of revealing twists of circumstance that rival fiction, two aspects of the "Palin's Love Boats" episode illustrate Juneau as a state of mind. In both, Juneau conveniently assumed the proportions of a symbol. First, after lunch, the governor took her initial group of guests on a "flightseeing" trip to the Kensington Gold Mine in Berners Bay, north of town. Her field trip itself was a partisan gold mine. At the time, the Kensington Gold Mine was at the center of litigation pitting the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Juneau Group of the Sierra Club against the mine's owner, Coeur Alaska, Inc., and the state itself. Narrowly, the issue was whether, under federal law, mining by-products that Coeur Alaska, Inc. proposed to dump into the adjacent Lower Slate Lake were prohibited "discharge" or acceptable "tailings." Among Alaska conservatives, the dispute had assumed the proportions of "obstructionist environmentalists" versus "jobs for Southeast Alaskans." Ironically, the procedural contours of this dispute bore a striking resemblance to Morse v. Frederick in that the mining company had won at the U.S. District Court level, but had lost on appeal at the Ninth Circuit. In both disputes, Alaskan conservatives were counting on the Roberts Court to reverse an out-of-step "liberal Ninth Circuit." Playing on this parallel, in a second coup, Sarah Palin invited Deborah Morse to join her and her conservative guests for lunch—one week before the Supreme Court announced its BONG HiTS decision. In the space of a single afternoon, Governor Palin adroitly aligned herself with two of contemporary Juneau's conservative icons. Her efforts to woo influential Republican queen makers proved decisive:

By the end of February 2008, the chorus of conservative pundits for Palin was loud enough for the mainstream media to take note.... By the spring, the McCain Campaign had reportedly sent scouts to Alaska to start vetting Palin as a possible running mate. A week or so before McCain named her, however, sources close to the campaign say, McCain was intent on naming his fellow-senator Joe Lieberman.... David Keene, the chairman of the American Conservative Union ... believed that "McCain was scared off" in the final days, after warnings from his advisers that choosing Lieberman would ignite a contentious floor fight at the Convention, as social conservatives revolted against Lieberman for being, among other things, pro-choice.

(Continues...)

---

Excerpted from Bong Hits 4 Jesus by James C. Foster Copyright © 2010 by University of Alaska Press. Excerpted by permission of University of Alaska Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---

Table of Contents

Acknowledgments vii

Introduction 1

Prologue: A Tale of Three Wars and Zero Tolerance 7

1 Harmonic Convergence in Juneau: [In]famous for Fifteen Minutes 11

2 The Tentative Tinker Rule 41

3 From Black Armbands to Colliding Tubas 57

4 A New Century, a Different Court 75

5 The Ninth Circuit Weighs In 91

6 No-So-Brief Battles, Not Such Odd Bedfellows 113

7 "Up in Smoke at the High Court" 145

8 Five Takes on a Single Event 171

9 Lost Opportunities and Failure of Imagination 195

Endnotes 227

Works Cited 321

List of Interviews 349

Table of Cases 351

Index 355

Editorial Reviews

By following one case very closely over a long time [Foster] finds opportunities to discuss a variety of issues involved in constitutional litigation. . . . This is an interesting analysis that clearly reveals there is more to the law than the pronouncement of high courts.

Law & Politics Review

"Before Sarah Palin, Alaska gave us Morse v. Frederick, the 2007 Supreme Court case conventionally known as "Bong Hits 4 Jesus." Foster's book puts the case in context. The precipitious slide in Supreme Court protection for free speech in high school since Tinker in the 1960s is only part of the story.—John Brigham, University of Massachusetts, Amherst

John Brigham

"Dangerous, disruptive, unprotected speech or a sophomoric grab for TV face time? Foster’s fascinating and comprehensive book about Morse v. Frederick walks readers through every stage of a case that resulted in the US Supreme Court establishing a ‘messy precedent’ that may deeply affect First Amendment speech rights for years to come. Sensitive in its portrayal of both students’ rights and school authority, Bong Hits 4 Jesus considers whether this recalibration of student speech rights is a major retreat.”

Jill Norgren

A rewarding and engrossing read. Highly recommended.

Choice