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.

27 comments:

egarber said...

Two points:

1. You're totally correct with regard to Thomas. Racial segregation was the politically accepted norm at the time the 14th was passed -- does Thomas therefore favor overturning Brown v Board? Originalism can work if one uses it to uncover original PRINCIPLES that we should strive to make "more perfect" over time; however, it's harmful if used to literally timewarp society backward.


2.There's no way to know, but given Scalia's outright ugliness in some of the gay rights cases, I can't help but wonder if the outcome might have been different had a group of students instead unfurled a banner expressing: "straight teens for Jesus".

Tam said...

Sherry,

Do you think that CJR's opinion turns on the premise that "Bong Hits 4 Jesus" has nothing to do with a political message of decriminalization? Or is it that the message is ambiguous and the principal's interpretation - as long as it is reasonable, which in this case I agree it is - should be given deference?

In order to reconcile the apparent inconsistency, I guess I would distinguish between (1) whether it is "a case about political debate"; and (2) whether the phrase "BH4J" has a reasonable interpretation as a political message.

I can see being able to consistently answer "no" to the first question but "yes" to the second in a situation such as this where (1) the meaning of the phrase is ambiguous; and (2) the speaker by his own admission did not intend to convey a political message (I am taking CJR's word on that without verification).

I think one serious problem with this standard occurs if you have an ambiguous message, but where the speaker intends it to be political? Then the standard requiring an on-the-spot determination by the principal of the speaker's intent seems unworkable. And an HS student who's up on his First Amendment jurisprudence could just say that he intends a political message when he's really just advocating breaking the law. I guess that's why hard cases make bad law.

Under these facts, though, I think the result is reasonable. Do you think that the majority's opinion would deem "Legalize Bong Hits 4 Jesus" protected speech?

Would I be wrong to characterize your point as "in the school setting, a message should be protected under the First Amendment if it is capable of a political interpretation and would not cause a 'substantial disruption'"?

PG said...

2.There's no way to know, but given Scalia's outright ugliness in some of the gay rights cases, I can't help but wonder if the outcome might have been different had a group of students instead unfurled a banner expressing: "straight teens for Jesus".

First, I doubt that in the context of the Olympic Torch Relay, that a principal would object to that message. It's not explicitly hateful toward homosexuals and unlikely to cause much disturbance, and the need to maintain order (a need with which I sympathize, having attended public schools) is the justification for restrictions on student speech.

Second, given all the rightwing support of Frederick, Scalia must be well aware that the precedent set with the Bong Hits 4 Jesus case will affect the rights of religious students who want to express their dissent from the secular norm. If the school's reach extends to a banner on a class trip -- an activity not taking place in a genuine learning environment, and thus unlikely to cause distraction or otherwise make schools' task of education more difficult -- it certainly reaches the Harper v. Poway kid who wanted to publicize his belief that God hates homosexuals. Now, that is more explicitly core First Amendment activity (combining both speech and religion), but if the message were in any way interpretable as advocating an illegal activity (such as gaybashing, or in some states, discriminating against homosexuals), it suffers from the same problem as Frederick's speech: if schools have a responsibility to tell kids to Just Say No to Drugs, they presumably have an equal if not greater responsibility to tell kids not to commit illegal acts of assault, harassment or discrimination.

Incidentally, the assumption that "Bong Hits 4 Jesus" must be a pro drug message is telling about the all-Catholic majority's willingness to impose their religious values on others. Why is something "4 Jesus" necessarily a good or positive thing? The majority draws "pro drug" as the only possible message of the banner, regardless not only of the speaker's intent but also the variety of beliefs and interpretations of viewers. Frankly, given teenage cynicism about religion, I think the message is equally susceptible of interpretation that Jesus's counsel to separate ourselves from worldly concerns makes Him sound like a real pothead.

Sobek said...

"...but the Court's decision (and indeed, the principal's decision) turns on the meaning that other people could have derived from the banner..."

On my reading of the case, the Court wasn't the least bit concerned with possible meanings, only with whether the principal's reading was a reasonable one. After all, the First Amendment is a check on state actors, and the principal was the only state actor involved.

Sobek said...

Also, as one of the few unabashed conservatives around here, I think I speak with some authority when I say Justice Thomas must have been smoking something when he wrote that concurrence.

Michael C. Dorf said...
This comment has been removed by the author.
egarber said...

Thanks PG

First, I doubt that in the context of the Olympic Torch Relay, that a principal would object to that message.

If a school had an official tolerance policy and there had been tensions between gay and other students, wouldn’t a teacher be acting reasonably if he / she thought the message was disruptive?

That’s kind of what I’m getting at here. I have a sense that Scalia might find against the teacher – though I may be wrong of course.


-- it certainly reaches the Harper v. Poway kid who wanted to publicize his belief that God hates homosexuals. Now, that is more explicitly core First Amendment activity (combining both speech and religion),

Why is that more explicitly a religious activity? Who decides that question? Is it not possible that some religious sect has a pot-skewed religious respect for Jesus? What makes an expression of hate toward homosexuals more “religious” than some other arbitrary expression?

it suffers from the same problem as Frederick's speech: if schools have a responsibility to tell kids to Just Say No to Drugs, they presumably have an equal if not greater responsibility to tell kids not to commit illegal acts of assault, harassment or discrimination.

Does it have to be illegal activity? What if the school has a policy of tolerance, and a teacher decides anti-gay messages are disruptive and a violation of that policy? Suppose the school had a specific history of tension in this area, to create some context. [Is this ruling limited to just *illegal* activity that is against school policy -- vs. behavior that's not against the law per se, but contrary to a school's mission?]

I’m not disagreeing with the finding –- that 1) kids in a school setting don’t have full First Amendment rights like an adult has in a public forum, and 2) teachers have the right to remove disruptive speech – or speech that urges others to violate official school policies (or at least some of them) -- from a school setting.

I’m more so concerned with whether certain justices would be consistent in deferring to a teacher’s “reasonable interpretation” of a message.

dbennett455 said...

This is the most frightening thing I have ever seen in the news. We saw our rights trampled on today. We have witnessed the death of our first amendment at the hands of those sworn to protect it. Desecrated, spat upon at the request of a high school principle. I am sickened by this. Now I know for certain that we are loosing our country. Everything we stand for is at risk. When we loose the right to question the law of the land at a public institution we have truly lost freedom that our ancestors fought for. Lady liberty lies on her death bed while the Fatherland waits patiently. Perhaps there may still be time? There may still be time to save our freedom.

SEND YOUR SUPREME COURT A MESSAGE TODAY!

I CHALLENGE EVERY HIGH SCHOOL STUDENT in this country to make a copy of this banner and display it at your school as soon as possible. And remember, when they come to tear it down and trample on your Bill of Rights, this time it IS A POLITICAL STATEMENT. Don't let your freedom die this way.

Sobek said...

"When we loose the right to question the law of the land at a public institution..."

Who was questioning the law of the land? Frederick never claimed that's what he was doing. He claimed the opposite, and the majority opinion pretty much stated that if that's what he was doing, the result would have been different.

egarber said...

and the majority opinion pretty much stated that if that's what he was doing, the result would have been different.

I've only read some of the ruling. But is this accurate? I thought the court was only concerned with whether the teacher's interpretation was reasonable, which wouldn't seem to hinge on his intent -- unless somehow it got vetted to the point where everybody knew beforehand what he meant..

Sobek said...

Egarber, the majority never states so expressly, but I believe that's the only reasonable reading.

"But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent's suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession."

Majority Opinion at 8 (when printed in .pdf format)

"...there is no serious argument that Frederick's banner is political speech of the sort at issue in Wisconsin Right to Life."

Majority Opinion at 11, n. 2.

And most importantly, "The special characteristics of the school environment ... allow[s] schools to restrict student expression that they reasonably regard as promoting illegal drug use."

Majority Opinion at 14. This limiting statement strongly suggests that advocacy for a change in the law is not covered by the ruling -- only advocacy for violation of the law.

Finally, Alito's concurrence was joined by Kennedy, and states that the majority "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

Alito concurrence at 1. With Alito and Kennedy refusing to sign on to a broader rule restricting political speech, the dissenters have enough votes to carry the day. In other words, had the sign read "Legalize Bong Hits 4 Jesus," Roberts would have been a dissenter.

PG said...

In their shared concurrence, Alito and Kennedy put forward a very narrow idea of what constitutes "commenting on any political or social issue." In my view, touting the virtues of drug use is commenting on a social issue. A rap song with the line "'Hos wanna get in a playa's pants" is commenting on a social issue. (Indeed, Snoop Dogg drew a distinction between the women it's OK to call 'hos, and calling collegiate women basketball players 'hos -- presumably even Alito and Kennedy would count his MTV interview as social commentary.) I am afraid the concurring justices are too far up an ivory tower to realize the diverse ways in which Americans comment on social issues. They tend to recognize only commentary that they would read, so that a Washington Post editorial that condemns the subordination of women in hiphop culture counts as social commentary, whereas the verbalized aspect of the phenomenon to which the editorial responds -- lines like my example above -- don't count as social commentary.

Since when did we stop protecting speech that had a confused or even nonsensical message? In Hurley, a unanimous Supreme Court declared that 'a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll.'

So Lewis Carroll's nonsense poetry is "unquestionably shielded," but Bong Hits 4 Jesus apparently isn't. Perhaps Frederick should have tried a haiku.

Bong Hits 4 Jesus
Winter Olympic Game
But not in Utah.

Sobek said...

"Since when did we stop protecting speech that had a confused or even nonsensical message?"

The banner here either had no message at all (if you believe Frederick) or a message advocating illegal drug use (by no means confused or nonsensical -- just dumb).

egarber said...

Good stuff Sobek...

I see the point, but I view the majority ruling in a slightly broader manner (I finally read it).

I think you're right in that speech heading fully down the political path (such as the arm bands in Tinker) will be protected.

But at the same time, the majority states that regardless of the motive behind a message, it's the content that matters -- so it becomes a question of how it's interpreted within the school context (where via Fraser kids have less First Amendment latitude than in other settings).

What I'm getting at is that the ruling doesn't appear to conclude that if there is any reasonable *political* interpretation of a message, that must therefore trump the possibility that there are other reasonable NON-political interpretations.

In other words, had the banner really said "*legalize* bong hits for Jesus", it's very likely that the principle would have behaved exactly the same. And I think it would be possible to find that her interpretation -- that the message advocated drug use against school policy -- is "reasonable" (at least by the Frederick Court's reasoning).

So that brings me back to my question: won't the true Frederick test in the future be: "was the administrator's interpretation reasonable, even if one could also make the case that a message was political in nature"?

BTW, you make a good observation about how Roberts might be tempering to hold onto Alito and Kennedy. The majority makes the point of saying Fraser shouldn't be taken too far -- i.e., merely offensive speech isn't proscribable. That seems like it might have been a bone for those two justices.

I'm also wondering about another scenario I brought up before. Though this ruling only directly covers advocating illegal activity that is against school policy, what does the overall body of precedent say about advocating otherwise LEGAL activity that violates school policy? I keep coming back to the scenario where a school has an official tolerance policy, and a teacher makes someone remove say, a white supremacy banner. My guess is that there's enough room in Tinker and Fraser to defend the teacher, but what do you think?

Sobek said...

"won't the true Frederick test in the future be: 'was the administrator's interpretation reasonable, even if one could also make the case that a message was political in nature'?"

That is a good question, and one more or less raised by Stevens. He notes that the majority is unclear as to whether this case is about the principal's reasonable interpretation, or the majority's reasonable interpretation. And Roberts certainly doesn't answer that question.

I suppose I might note that, for all the complaining by Thomas and the dissenters that there is no bright line rule, I walked out of my First Amendment class wondering whether there are any bright line rules in First Amendment jurisprudence. It's not like Roberts is the first justice to write an opinion that leave the door open for future litigation.

"...a teacher makes someone remove say, a white supremacy banner. My guess is that there's enough room in Tinker and Fraser to defend the teacher, but what do you think?"

Are you asking what I think the Court would do, or what it should do?

The Morse Court notes that Fraser is a hotly disputed precedent, but my reading is that it goes just to obscenity. That case had nothing to do with the content of the student's message (are we even told what the content was?) but to the obscene metaphor with which he expressed his message. A white supremacist banner would be offensive because of the message rather than the vehicle (assuming the banner doesn't have, say, pictures of nude women on it). So I don't think Fraser would support the student.

Tinker also requires message-neutrality, and only allows censorship for substantial disruption. I strongly suspect that a white supremacist banner is almost prima facie evidence of an imminent, substantial disruption, but of course the case will turn on the facts at the school, rather than the content of the message.

A teacher also might have grounds to censor the banner under Kuhlmeier if the banner is hung on a wall of the school, for example, or anywhere else where the school's failure to take it down may appear as endorsement of the message.

Under any of those three landmarks, then, a teacher may have solid grounds to censor the banner. I don't think Morse is to the contrary, especially in light of Alito's concurrence, because it is written narrowly to only cover drugs (in fact, not even any other illegal activity, such as prostitution).

egarber said...

The Morse Court notes that Fraser is a hotly disputed precedent, but my reading is that it goes just to obscenity.

I'm pretty sure it's broader than that -- something like "offensively lewd and indecent speech". I think that's partly why there might be a silver lining in the Frederick case, because Roberts seems to contain Fraser by writing:

Petitioners urge us to adopt the broader rule that Fre-derick’s speech is proscribable because it is plainly “offen-sive” as that term is used in Fraser. See Reply Brief forPetitioners 14–15. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of “offensive.”

PG said...

sobek,

Perhaps you can clear up a literary question for me, then; what is the meaning of

`Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.

?

Sobek said...

egarber, you're right to note Robert's paragraph limiting the scope of Morse.

pg, I'm not sure I understand the purpose of your question. You asked when we stopped protecting speech with a confused or nonsensical message, and I responded that Frederick's banner either has a perfectly clear message (per the Court), or no message at all (per Frederick). So even assuming Jabberwocky is nonsense, it is still very different from Frederick's banner.

Now to answer your question more directly: "brillig" is about 4 o'clock in the afternoon. "Slithy" is a combination of "slimy" and "lithe." "Toves" are a combination of a lizard, a badger and a corkscrew.

Then again, I suspect you actually know all this, so I won't continue. I'll just observe that you perhaps had a better argument with a Jackson Pollock painting (or better still a Rothko).

PG said...

I'm not sure how one could say that "bong hits 4 Jesus" has no message at all. If I asked Frederick whether it was nonsensical, he very likely would agree. By having no "message," I'm fairly sure he meant "no advocacy message." Hence the concept of a White House being "on message" -- consistently advocating the same ideas.

But very well -- what's the message of Pollack or Rothko?

Drewcifer said...

BONG HiTS 4 FREE SPEECH tee-shirt

Check that out. =)

Drewcifer said...

Indianapolis Bureaucrash cell activating for "BONG HiTS 4 FREE SPEECH" demonstration.

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