Monday, June 25, 2007

Bong Hits for Jesus (Morse v. Frederick)

I don't follow individual Supreme Court decisions all that closely, but have always had a strong interest in first amendment issues that affect juveniles. For that reason, I was quite surprised that the current court (Morse v. Frederick (no. 06-278 2007) upheld the suspension of a student for holding up a sign at a school-sponsoered event in Juneau, Alaska that read "Bong Hits for Jesus".

The court of appeals had felt that the sign did not create or threaten a substantial disruption, a standard first established in Tinker v. Des Moines, a Vietnam era case in which the court upheld the right of students to wear black arm bands to school to protest the war. Surprisingly, Tinker v. Des Moines was the first case to hold that students had any level of constitutional rights. The Tinker standard was weakened many years later in the Reagan era (1986) Bethel School District v. Fraser in which a student had made an "obscene" speech that didn't cause a disruption. In Bethel, the court basically said "disruption or no disruption, we do not protect obscenity as part of a student's right to free speech."

Morse v. Frederick started in 2002 when the Olympic Torch Relay passed through Juneau and the school granted students' permission to attend and participate. Frederick, a senior at the school, helped unfurl a fourteen foot long banner that read "Bong Hits 4 Jesus". The principal then instructed the students to take the banner down. Frederick was the only student who refused. Morse, the principal, supsended Frederick for ten days for violating a school board policy that prohibits "any public expression that advocates the use of substances that are illegal to minors."

Morse took care to point out that she believed that the banner had advocated drug use as opposed to advocating legalization (which would have been a political statement) or religious beliefs about Jesus and that the school's mission was to educate students about the dangers of illegal drugs. In the Vietnam generation it was black armbands about the war. In Reagan's time it was obscene speeches filled with sexual innuendo. Today, it's behavior inspired by South Park and the Simpsons.

Chief Justice Roberts (according to Newsweek only 11 percent of Americans know that he's the chief justice) wrote the opinion of the court determined that Morse reasonably determined that the banner, nonsenical and silly as it was, potentially promoted drug use. In addition, he stressed the key role schools play in educating children about the dangers of drugs.

Justice Thomas agreed with the court, but wrote a separate opinion to argue that Tinker, the black armband case, had been wrongly decided.

final vote 5-3 (actually 5.5 to 3.5)
Roberts, Thomas, Alito, Scalia, Kennedy for the school
Souter, Stevens, Ginsburg dissented on the grounds that the banner didn't advocate any kind of behavior in particular and thus was not advocating illegal behavior per se. Stevens went on to argue that drug education should not wipe out the right to free speech in any context. He used the very provocative counter example of "wine sips for Jesus" which is both illegal for minors and a part of a Christian ritual.

Breyer agreed and disagreed in part and argued that the District simply has qualified immunity from personal damages and would have let it go at that. It won't be much discussed, but Breyer's opinion is significant. Many attorneys wondered why the court was so anxious to hear this case at all.

There is no question that W's appointments of Alito and Roberts have impacted the court. btw, the Attorney for the School Districtin this case was Kenneth Starr, you might remember him.

Other interesting tidbits.
1) Fredericak got in trouble for marijuana possession while at college
2) Frederick's father who worked for a company that contracts with the Juneau schools lost his job and won a judgment for 200 thousand dollars for wrongful firing.
3) The court made no mention of the "Jesus" part of the sign likely because conservative groups had supported the student because of the arguably favorable mention of Jesus in the banner.

A couple things.
The court's decision in this matter worries me because of the very subjective standard it endorses about the discussion of a given topic. In their view, the administrator could reasonably determine what was "drug" talk and what was not. Second, I don't exactly consider Frederick a hero of the first amendment. One generation of students fought for its right to protest the war at school. This generation went to court to uphold the right to wave a fourteen foot long banner reading "Bong Hits4 Jesus" which Frederick claims he carried because he wanted to get on tv. Sometimes, I think we deserve the country we have.

Thomas Jefferson who some claim smoked an occasional pipe of hemp leaf must be rolling in his grave.



At 6/25/2007 04:02:00 PM, Blogger None said...

That Newsweek link is frightening. Its interesting to take a look at the "Correct Answers in Bold".

As for the first amendment thing, I found myself a bit worried for religion. I know in the Monterey area a young girl was recently asked to remove her headscarf at school. While this is different than a bong hit, its not that different than a sip of wine. Besides, couldn’t a bong be used for tobacco?

At 6/25/2007 04:05:00 PM, Blogger Chancelucky said...

In defense of the court's decision they did limit the impact to "speech that promoted drug use"in the reasonable view of the administrator.
Of course, school administrators aren't always reasonable. I think that religious expression is safe, for the moment. The Burkha issue is pretty fascinating in general, but I don't really see how the school in Monterey could have forced her to do that....If you have a link to the story....

At 6/25/2007 06:41:00 PM, Blogger Martin Heavisides said...

"School administrators aren't always reasonable"
You're going for ironic understatement here, right?
I agree with both your observations. The court's decision has frightening implications, and Frederick's act was in itself fairly stupid.

At 6/25/2007 07:50:00 PM, Anonymous Anonymous said...

Bong Hits for Satan is all I can say. (Satan is obviously having a merciless merry mock of us with Sick Dick & the HenchIlk. No conceivable Satan could do more creepy deep harm than these Ilk.)

At 6/26/2007 09:01:00 AM, Blogger None said...

Here is the AP story. I think something ran in the Monterey Herald too. Here is the Muslim News story.

The school has apologized, so the issue seems to be dead.

At 6/26/2007 11:13:00 AM, Blogger Chancelucky said...

thanks for the link. Students in California have specific spesech protections under Education Code 48907 and 48950 that go beyond the Federal guarantees.

I'm really surprised the Monterey school even tried it.

At 6/27/2007 02:44:00 AM, Blogger benny06 said...

The Bush appointees are doing their job, not for us, but for them. Shouldn't appointees look out for all justice, not just for Bush?

At 6/27/2007 08:00:00 AM, Blogger Chancelucky said...

This particular case is a bit different in that the student said that the sign itself was nonsensical. IT's all a very strange story. The fact that Ken Starr was the attorney for the school district makes it all that much stranger.

yes, I was being a bit ironic. It is odd these days what people will make a stand on. In this case, I think both sides took a fairly bizarre situation and literally made a federal case out of it.

Mr. Pogblog,
I tend to think of this case as being more or less comic all around, but Thomas's dissent is truly scary.

At 7/01/2007 01:00:00 AM, Blogger Charles Lambert said...

Well, for a catholic who believes in transubstantiation a hit on a bong would probably transform itself into the breath of Christ, so maybe it isn't totally meaningless.

The oddest thing about that Newsweek poll was this question: From what you know about the situation, do you think the United States is losing the fight against al-Qaeda or radical Islamic terrorism?

The 'correct' answer, according to Newsweek is NO.

At 7/01/2007 09:29:00 AM, Blogger Chancelucky said...

One of the odd things about this case is how hard everyone tried to steer clear of the "jesus" part of the banner. There are also some Native American religions that use mescaline in their ceremonies.

The student, though, insisted that the banner was purely silly and that he was not attempting to make any kind of statement with it other than to get on television. The other odd thing is that there were several students holding that banner, he was the only one who refused to take it down.

The Newsweek poll has some very "conclusory" correct answers. You could do one of these polls and find that there's a significant percentage of Americans who believe that Iraq is in Africa.

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