Tuesday, June 26, 2007

Bong Hits 4 Free Speech

Yesterday the Supreme Court handed down the "BONG HiTS 4 JESUS" case, Morse v. Frederick. The case involved a group of students who unfurled a banner that said "BONG HiTS 4 JESUS" as the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Utah. The school had permitted staff and students to participate in the Torch Relay as a class trip. When the principal saw the banner, she demanded that it be taken down, ultimately confiscated it and suspended the one student who had refused her order, Joseph Frederick. The student brought a lawsuit against the principal and the schoolboard, claiming that they had violated his First Amendment rights and seeking declaratory and injunctive relief and damages. The trial court rejected Frederick's claims, the Ninth Circuit reversed, and the Supreme Court yesterday held that the school officials acted properly in restricting student speech at a school event when that speech could be viewed as promoting illegal drug use.

Though there is much to discuss in reference to this case, one noteworthy feature is the Court's suggestion that the banner in question was not political speech. The Court says that "this is plainly not a case about political debate over the criminalization of drug use or possession." I disagree. On the one hand, the student in question claims that he didn't mean to say anything in the banner -- he just wanted to catch the eye of the people with TV cameras. Fair enough, but the Court's decision (and indeed, the principal's decision) turns on the meaning that other people could have derived from the banner, and it is not plain to me that "Bong Hits 4 Jesus" has nothing to do with a political message of decriminalization.

One could, for example, read the quote as an expression of the view that marijuana use is sacred in some way, just as Christians hold Jesus to be sacred. If so, then it would seem to follow that such use should be legal (just as worshipping Jesus is legal). Another plausible interpretation is that religious belief is like a mind-altering drug, a point made by Karl Marx that could hardly be characterized as apolitical. Finally, the banner could simply express the view attributed to it by the Supreme Court -- urging people to use marijuana or celebrating the use of marijuana. Though such a message does not necessarily entail support for decriminalization, it would seem to lean in favor of such a policy. If the Court would have decided the case differently for a banner with a political message urging decriminalization, then I am not convinced that it analyzed the case correctly.

A second interesting feature of the decision is Justice Thomas's concurring opinion. He argues, on the basis of original meaning, that students at school have no First Amendment rights. He elaborates the way that schools were run at the time the Fourteenth Amendment became law and in the decades that followed. He shows, convincingly, that not only were students routinely silenced, but they were physically punished if they disobeyed a "master's" order. (He explains, in fact, that the doctrine of in loco parentis -- where school officials act as parents to schoolchildren -- "merely limited the imposition of excessive physical punishment"). In view of this history, Justice Thomas argues, it is difficult to imagine that anyone contemplated free speech rights for students at school.

Though Justice Thomas is probably correct about the prevailing views at the time of the framing and thereafter, his opinion is unfortunate. He is prepared to embrace uncritically the values of people who lived at and before the turn of the century and who, apparently, took the position that not only should children be seen and not heard, but they should also be beaten for disobeying authority. This view of children happens to coincide with deplorable views of women (who only received the right to vote in 1919) and African-Americans as well, a caste system in which white men stand at the top, sceptre in hand. Just as men could beat their wives and children with impunity, so could the schools -- acting in the place of parents -- beat their children. This "traditional authority" that Justice Thomas wishes to honor would also, as he surely knows, have found preposterous the assertion of a right to marry across racial lines.

Justice Thomas's opinion nicely illustrates the flaws of originalism as an approach to constitutional interpretation: it sets in stone the prejudices and vices of the framers rather than taking their words (and their full implications) at face value. In the scheme of things, I am far less concerned about a student's freedom to hold up a "Bong Hits 4 Jesus" banner -- on which there can be reasonable debate -- than I am about a student's right not to be beaten by his teachers for disobeying the rules, a right that Justice Thomas's opinion needlessly calls into question.