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June 25, 2007

Supreme Court Rules Against Bong Hits 4 Jesus Student

by Doug Mataconis

The Supreme Court declined the opportunity to strike a blow for the rights of students, instead choosing to uphold a Principal’s decision to suspend a student for displaying what was clearly a nonsensical sign:

WASHINGTON — The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

“The message on Frederick’s banner is cryptic,” Roberts said. “But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”

Morse suspended the student, prompting a federal civil rights lawsuit.

In other words, the actual content of the message doesn’t matter so long as someone in authority thinks that it advocates something that violates school rules. More disturbing, though, is the fact that the Court does not seem to even address the fact that this happened outside the school, a fact which law professor Ann Althouse emphasized when she wrote about this case in January:

This case is about something that happened on the street and not in a classroom. The banner was, of course, silent, and the occasion was a parade. It’s quite different from disruptive speech during a lesson. Scalia offered a distinction between “disruptive” and “undermining.” The school’s real objection is that a pro-drug message undermines the message it endorses. That is, they don’t want disagreement and debate. They still convey their anti-drug message all the time, and this student isn’t interrupting them or even distracting anyone from hearing that message. He’s just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.

Unfortunately, Professor Althouse’s views are not shared by the five Justices in the majority.

Update: KipEsquire has two interesting observations:

Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker’s* (or any other case’s) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time.

The gist of Roberts’ opinion seems to be that “fighting drug use” is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message).

Or, as Kip puts it, the Court has effectively decided that the War On Drugs trumps the First Amendment.

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5 Comments

  1. Two Comments on your editorial comments:

    1. “In other words, the actual content of the message doesn’t matter so long as someone in authority thinks that it advocates something that violates school rules.”

    … clearly unequivocal messages are hard to come by. So an INTERPRETIVE JUDGEMENT is going to be something that is usually called for in a case like this.
    The call is made by the person on the scene, then to be questioned by higher authorities as needed (for schools, there is a chain of authority: teacher, principal, school board, local court, etc.) Supreme Court Chief Justice Roberts said “that interpretation is plainly a reasonable one” indicating that the opinion of the authority (Principal in this case) should meet a reasonable standard. Lawyers love that word, but often there really isn’t a better one. It means the judgement call has to stand scrutiny on a case-by-case basis, unless broader guidelines (legal precedence) have been established. Like yelling “fire” in a theater. Let’s test your principle. Imagine a legal defense that says “I can yell FIRE in a crowded theater- because I *meant* “fire” as in I advocate the actor losing his job”. So INTENT means everything and the listeners UNDERSTANDING or interpretion has zero force? That’s just not the way the law works. (lookup “fighting words” in your jurisdiction…)
    Every 1st amendment case is going to involve an interpretive judgement of the message, don’t you think? “What does that mean?” is something argued over constantly, literally a pivotal issue here. So I have to give your outrage here a pass for failing to meet a basic understanding of the logic involved in the kind of case. You can’t argue the school administrators opinion of the message is not relevent- or be surprised that the Court took it into consideration. A better question is who determines what is a reasonable interpretation or not?

    2. “More disturbing, though, is the fact that the Court does not seem to even address the fact that this happened outside the school”

    Case law clearly establishes that school authority extends off campus when the school provides transportation, organizes or promotes the event, excuses regular class to attend such an event, finds a significant gathering of students supervised by school faculty, etc. Ever heard of a Field trip? Do school rules not apply to field trips? How about proms? I’m not sure why the concept is “disturbing”.

    So… everybody is entitled to an opinion, and everybody is entitled to be ignorant, and everybody is entitled to both at the same time… but I discourage it.

    I fail to see defense of this kind of intentionally incendiary statement as anything more than knee-jerk anti-authoritarianism. But that is the new philosophy, isn’t it? The principal made a reasonable judgement call. It’s what he/she gets paid for. The LESSON here for everybody else in the school (should they be able to heed it) is don’t go looking for trouble with an attitude. Most grownups already know that… most teenagers don’t.

    If you advocate anybody can say anything at any time regardless of the consequences to the people around the speaker, clearly say so… and be ready for the courts and everybody else to tell you your opinion is… just that. Unless you are a judge that is… ;)

    Comment by Jack Brown — June 25, 2007 @ 1:59 pm
  2. Pathetic… Even more distressing (to some of us, anyway), joining Roberts were Scalia, Thomas, Alito, and Kennedy.

    It just proves that often the “strict constructionists” are willing to expand the meaning of the constitution when it matches their own beliefs about what government should be allowed to do.

    Maybe if Ron Paul gets elected, he’ll do the right thing and nominate Janice Rogers Brown to the high court!

    Comment by Brad Warbiany — June 25, 2007 @ 3:18 pm
  3. [...] at an event that took place outside the classroom and outside school property. As I explained in my post this morning, this was a serious setback for the free speech rights of [...]

    Pingback by Below The Beltway » Blog Archive » A Mixed Day for Liberty At The Supreme Court — June 25, 2007 @ 5:30 pm
  4. Or, as Kip puts it, the Court has effectively decided that the War On Drugs trumps the First Amendment.

    There’s truth in the statement that the real strength of government over its people rests in its war powers. This is true of the War on Terror, the War on Crime, the War on Poverty, and, of course, the War on Drugs.

    Why else would politicians be so quick to declare war on so many things.

    Comment by trav.is — June 25, 2007 @ 10:55 pm
  5. Cases like this exist/are invented out of thin air with legal whores, er professionals chiming in with their learned opinions, for the express purpose of cheapening our collective understanding of what exactly free political speech is.

    Why on Earth would the Supreme Court accept to hear such a stupid case? I challenge you to go back and look at what cases they passes on hearing and you’ll find better fodder than this.

    I mean if the sign said “Abortion is Murder” do you think you would either care or the Supreme Court would take the case? Of course not.

    Comment by C Bowen — June 26, 2007 @ 3:04 pm

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