Bong Hits 4 Jesus

[MichaeltheGreat]

Originally posted by Jon Miller
Who determines what that level of speech is?

Jon Miller

The courts have long held that freedom of "speech" is not absolute (the line about "shouting fire in a crowded theater), plus conspiracy, incitement to riot, etc.

In this little moron's case, he said there was no message - if there's no message, no matter how inane, trivial, offensive, important, or whatever - just no intended message, then how do you seriously argue that "conduct" (putting up a banner) can be equated to "speech?"

[SlowwHand]

The law has needed to be revisited for 40 years.
Where was this kid when they sent people to jail for possession of under 1 quarter ounce?

OH, that's right! The little dweeb wasn't even in anyone's thoughts. Like this is a sudden revelation.

[Arrian]

No, he just thought it was a good way to piss off the principal.

Slate's take:

supreme court dispatches
Bong Hits 4 Jesus
Because you just can't improve on "Bong hits 4 Jesus."
By Dahlia Lithwick
Posted Monday, March 19, 2007, at 7:24 PM ET



We've come a long way since "**** the Draft." The history of free speech in America features a long proud march of embattled speakers pushing back against government authority. Whereas today's free-speech heroes pretty much just want to be zany enough for YouTube.

In the old days, whether they were claiming that government workers were "God damned racketeers" (in Chaplinsky v. New Hampshire); protesting the war in Vietnam with armbands (Tinker v. Des Moines) or foul words (Cohen v. California); declining to "live free or die" (Wooley v. Maynard) or asserting the controversial right to burn a flag (Texas v. Johnson) these folks had the courage of their convictions. And because of John and Mary Beth Tinker—who wore black armbands to school to protest the war—the Supreme Court once agreed that student free-speech rights don't disappear at the schoolhouse gate. Today's court isn't so certain.

Alaska high-school student Joseph Frederick hoisted his 14-foot "Bong hits 4 Jesus" banner to get on TV. He knew it was a meaningless phrase. He'd seen it on a snowboard. (Nine out of 10 potheads I polled for this piece confirmed these words are no more meaningful when stoned.) But Frederick wanted to annoy school administrators, and he wanted media attention, and as we discovered today, he chose well on both fronts. He was suspended for 10 days. And we are out in droves to cover his case. The words "Bong Hits 4 Jesus" do grab headlines, and even the justices seem to be giggling and getting the munchies as they speak the words this morning.

Frederick held up his banner for the TV cameras, just opposite school property during a local event celebrating the Olympic torch relay in 2002. The principal seized the sign and suspended him. He sued, and while he lost in the trial court, he won at the 9th Circuit Court of appeals, which went so far as to say that the principal could owe him money damages. The court today must decide whether Frederick's banner is more like Tinker's black armband or a disruptive call to lawless drug use.

Oral argument in Morse v. Frederick does reveal some of the worst aspects of sharing a bong. The first being paranoia. Because according to Kenneth Starr, former righteous independent counsel—now tanned Californian law-school dean—the fate of the drug wars depends upon the unconditional school message that drugs are bad, yet schools cannot enforce that message because smartass kids keep undermining them. Starr's alternative (and if you ask me, far more paranoia-inducing) universe: Schools get limitless discretion to craft broad "educational missions" and are then free to squelch any student speech that "undermines" them.

The justices appear to loathe each alternative about equally. At some point, Justice Stephen Breyer groans that a ruling for the students would encourage them to be "testing limits all over the place in the high schools," whereas a ruling for the schools would certainly end up limiting lots of speech.

Starr opens with the statement that "the glorification of the drug culture" is at stake here. He claims that schools, even under the broad standard laid out in the armband case, can't necessarily limit political protest but may bar "disruptive speech." This sets the court's hippies off. Justice Anthony Kennedy: "There's no classroom here." Justice David Souter: "What did it disrupt on the sidewalk?"

Starr insists that "Bong Hits 4 Jesus" promotes drugs. Justice Ruth Bader Ginsburg asks whether a sign that said "Bong Stinks for Jesus" would be more permissible. Souter asks whether a simple sign reading "Change the Marijuana Laws" would also be "disruptive." Starr says that interpreting the meaning of the sign must be left to the "frontline message interpreter," in this case, the principal. Then Starr says schools are charged with inculcating "habits and manners of civility" and "values of citizenship." Yes, sir. In the first six minutes of oral argument Starr has posited, without irony, a world in which students may not peaceably advocate for changes in the law, because they must be inculcated with the values of good citizenship.

Chief Justice John Roberts wonders why students should be allowed to set the classroom agenda when teachers are trying to teach Shakespeare and Pythagoras. Starr says that in the Vietnam protest case, the school tried to "cast a pall of orthodoxy" by banning student protest. Whereas, he suggests—again without a whiff of irony—that students should be able to offer no dissenting opinions here because drugs, alcohol, and tobacco are bad.

Breyer (who seems to be having one of those "my hand looks sooooo big" trips) thinks maybe a better rule is one that bans any and all 15-foot banners on field trips.

Deputy Solicitor General Edwin Kneedler argues the school's side of the case on behalf of the Bush administration. Justice Samuel Alito finds it "very, very disturbing" that schools can define their "educational missions so broadly" that they can limit important student speech. He's worried about the evangelical groups, who sit, improbably, at the stoners' table in the cafeteria today. These groups worry, not unreasonably, that the targets of most school suppression of politically incorrect speech are religious students sporting pro-Jesus or anti-gay T-shirts.

Souter again insists that the "bong hits" statement itself should be scrutinized for its meaning. The way Cheech and Chong might strive to seek meaning in a Hanson song.* But Kneedler responds that the only person who can determine the banner's meaning is the educator who banned it. "But won't the principal always prevail?" asks Justice John Paul Stevens. Um, yes. That seems to be the point.

By the time Douglas Mertz gets up to argue on the students' side, it looks like he's already won, if for no other reason than the justices appear horrified by the limitless power the schools are asserting. But somehow he manages to trigger a second, more terrifying episode of paranoia in them. "This is a case about free speech, not drugs," he opens, but Roberts clocks him with: "This is a case about money. Your client wants money from the principal for her actions." Then Kennedy jumps in to ask what kind of kid would go after "a teacher who has devoted her life to this school, and you're seeking damages from her for a sophomoric sign."

Scalia begins to bogart the argument at this point and asks whether a school that held an anti-drug rally in the gym would have to permit a student to wear a button that says, "Smoke pot. It's fun." Mertz repeats that student protest can't be "disruptive." Scalia retorts that "undermining what the school is trying to teach" is pretty disruptive. Kennedy asks about a student sporting a button that says, "Rape is fun." Mertz says students may not advocate violent crime. This sets Scalia off again. "So, they can only advocate non-violent crime?" he snorts. "Like, 'Extortion is profitable?' " He adds that "this is a very, very, with all due respect, ridiculous line."

Now they all start to bicker about disputed questions of fact. Like whether it matters that the students were given time off to watch the Olympic torch, or that Frederick still wants the record of his suspension expunged, or that Frederick played hooky so that he could hold up his banner, yet specifically went to a spot directly next to the school to join his classmates (thus reaping the benefits of skipping school while still attending school for the purposes of annoying the school administrators). Ginsburg's eyes are getting redder by the minute. Ken Starr is now eating everything in sight.

It's hard to imagine that the students of America will be better served by giving their educators the ultimate gateway drug: the apparently limitless power to define their "educational mission" in any way they please in order to suppress any and all student speech that doesn't conform. That kind of power strikes me as more addictive, and even more dangerous, than any drug.

Correction, March 20, 2007: The band's name was originally misspelled as "Hansen." (Return to the corrected sentence.)

Dahlia Lithwick is a Slate senior editor.

-Arrian

[SlowwHand]

I wouldn't be a teacher in today's schools, and I'm not so sure I'd be a parent again, in today's world.
We absolutely have politically corrected ourselves into a hole that I doubt seriously we'll ever get out of.

[MichaeltheGreat]

Originally posted by Imran Siddiqui
I'd imagine that the banner, even though the student was doing it for fun, articulates the need to revisit the country's drug policy.

Really? Then how come the little dear denies that the "message" has anything to do with drugs at all - perhaps he's trying to dance around a clear school policy?

[Jon Miller]

Once more the question is who defines whether there is a message or not. Obviously it shouldn't be the proclaimer, as what they will say will change based upon what is more advantageous to them.

Obviously not the enforcer either, as they will do the same. The metric must be something universal... that everyone can reference.

This might not be the case to do it in.

Jon Miller

[MichaeltheGreat]

This is the kind of case that makes you really miss Rehnquist as CJ. His court would have decided this case on the absolute narrowest of legal grounds tied to the most limited set of facts, with no possible precedential value for any other case in the next 1,000 years.

This is just so much chicken****.

[Ogie Oglethorpe]

Originally posted by lord of the mark


Do I detect a certain, shall we say, "theme" running through your posts?

Just reflecting on my one year anniversary of snip snip.

[Elok]

Originally posted by Lord Avalon
But that would be a violation of his freedom of speech & the press.

Not when said paper is being printed on the school's nickel, as is usually the case. Even if he printed out flyers himself, distributing unauthorized written material was enough to get you in trouble when I was in school. Nobody called it fascism then, as the rule was enforced at admin's discretion and mainly used to stifle student's free expression of the latest issue of Hustler and other things not conducive to learning. There are certain ways students are expected to express themselves in school. They can start debates in class where relevant, or in after-school clubs, or write something respectful and considered (as opposed to sophomoric and daft) for the school paper. Hell, they can go on Myspace after school and whine to the entire English-speaking world, and the school can't stop them provided it's not bomb threats they're posting. If they act out at school, they get shot down. So what?

[Lord Avalon]

What if the title of the editorial is "Bong Hits 4 Jesus," but the content is serious? But the school administration squashes it anyway. Are you OK with that violation of freedom of the press?

[MichaeltheGreat]

Originally posted by Lord Avalon
What if the title of the editorial is "Bong Hits 4 Jesus," but the content is serious? But the school administration squashes it anyway. Are you OK with that violation of freedom of the press?

The First Amendment does not require any particular publisher to publish your content. Nobody is guaranteed a government funded outlet or platform for their speech or writings.

There is no violation of freedom of the press in a refusal to publish. The student in question is able to seek other means to publish his/her views.

The only way freedom of the press enters into is if the public school (a private school can do what it wants) retaliates against a student for speech/publication done entirely outside the school context.

[Lord Avalon]

Doing some research online, it looks like it depends on whether or not the student newspaper is considered a forum for student expression - if it is, it's protected, if not, it can be limited.

[SlowwHand]

I would imagine there's a charter or bylaws that was planned out at conception of any school paper.