By James C. Foster, a professor of political science at Oregon State University-Cascades.
When Joseph Frederick and his thirteen buddies hoisted their now (in)famous banner at the moment the 2002 Winter Olympic Torch Relay passed Juneau-Douglas High School, their stunt - and Principal Deborah Morse's reaction - set in motion a controversy that eventually reverberated all the way to the U.S. Supreme Court (SCOTUS). The outcome was what I term the "messy Morse" decision. The nine Justices wrote five separate opinions. The slim majority itself is deeply fragmented being, in effect, a 2-1-2 mélange ranging from Justices Alito's and Kennedy's wary concurrence, to Justice Thomas' belligerent rejection of Tinker v. Des Moines, with only Chief Justice Roberts and Justice Scalia embracing an unvarnished "drug speech exception" to secondary school students' First Amendment rights.
The January 24, 2002 incident on Glacier Avenue did not have to come to this pass. Among the insights I garnered from researching, thinking about, and writing my book on what blew up into "a perfect constitutional storm in Alaska's Capital," I want to highlight two here. Perhaps these are better described as lessons learned. First, in the event, when push came to litigating, Alaska state courts would have been the preferable venue in which Frederick could have contested his claims (under Article I § Five of the Alaska Constitution). Second, and fundamentally, push need not have come to litigating at all.