Dispatches from the Creation Wars

In Morse v Frederick, the now-famous “Bong hits for Jesus” case, the Supreme Court, by a 5-4 ruling, came down with just about the worst free speech ruling issued during my lifetime (see full text here). I expected a very narrow ruling in favor of the school. Unfortunately, the court issued a very broad ruling in favor of school authority to censor any speech they see fit, not because it causes any disruption, as the standard in Tinker required, but because it disagrees with a message the school thinks is important. This is a very dangerous precedent.

Leaving aside the question of whether the event was school sponsored or not (a very close call and I’ve no problem with the court saying it is), it is the breadth of the ruling that surprises me. Essentially the court says “drugs are bad and therefore the school can punish any student who makes any statement that might be construed as encouraging drug use.” Here is the holding:

A principal may, consistent with the First Amendment , restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment , id., at 504, that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school,” id., at 513. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 , however, upheld the suspension of a student who delivered a high school assembly speech employing “an elaborate, graphic, and explicit sexual metaphor,” id., at 678. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. 478 U. S., at 679-680. This Court reversed, holding that the school was “within its permissible authority in imposing sanctions … in response to [the student's] offensively lewd and indecent speech.” Id., at 685. Two basic principles may be distilled from Fraser. First, it demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. See, id., at 682-683. In school, however, his First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506. Second, Fraser established that Tinker’s mode of analysis is not absolute, since the Fraser Court did not conduct the “substantial disruption” analysis. Subsequently, the Court has held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights … at the schoolhouse gate,’ … the nature of those rights is what is appropriate for children in school,” Vernonia School Dist. 47J v. Acton, 515 U. S. 646 , and has recognized that deterring drug use by schoolchildren is an “important–indeed, perhaps compelling” interest, id., at 661. Drug abuse by the Nation’s youth is a serious problem. For example, Congress has declared that part of a school’s job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The “special characteristics of the school environment,” Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.

So as long as the school or the courts disagree strongly enough with the content of the speech, they can restrict it. Mr. Orwell, call your office. Roberts goes to great lengths to establish that the “pro-drug interpretation” of the banner, as opposed to any other possible interpretation, is the correct one, which means he is essentially arguing that anything a student might say that is “pro-drug use” can be censored by the school. He does make a fleeting reference to making a distinction between advocating drug use and advocating a political position about, say, drug legalization:

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14-16, this is plainly not a case about political debate over the criminalization of drug use or possession.

There are two problems with this. First, humorous or satirical statements like the one Frederick made have historically been used as political statements in a myriad of ways. Indeed, satire as political activism can be described as an American tradition, from political cartoons to Mark Twain to Paul Krassner and the Merry Pranksters. One can certainly imagine Abbie Hoffman wearing a t-shirt that said “bong hits for Jesus” on it to make a political statement against the government’s constant “say no to drugs” propaganda. The notion that one can draw the line so easily between political statements and amusing ones about political issues is clearly false. Second, how easy would it be for a school principal to decide that a pro-legalization t-shirt is really a pro-drug t-shirt?

The silliest part of the ruling is that Roberts claims that he bases his ruling on “the special characteristics of the school environment”, yet his rationale for why this particular statement can be censored has nothing to do with the school environment. His rationale is that drugs are bad and that the government has an interest in seeing drug use reduced. But that has nothing to do with the “special characteristics of the school environment” at all. If that rationale is correct then the government has the same interest in censoring such messages outside of school as well, at the mall or even in the home.

This ruling is much broader than I expected. I expected a narrow ruling in the school’s favor, one that perhaps said something like this: “This was an official school event where students could reasonably expect to follow the normal school rules. Just as a student could not unfurl such a banner during a school assembly or during class time, such behavior was disruptive of the event taking place and the school reasonably took action to stop that disruptive behavior.”

Frankly, i would have been okay with a ruling like that. But this ruling is far broader and is explicitly based on the content of the speech, the fact that it allegedly advocates drug use. That is what disturbs me about the ruling. If the school can censor any speech that it deems to be contrary to an important societal message, as this ruling clearly gives them grounds to do, there is a serious danger of quelling speech that merely advocates a position the school does not like. Indeed, that is precisely what happened here. The Court said, in effect, “we think doing drugs is bad and therefore you don’t get to express a contrary message.” That is clearly contrary to the first amendment.

Even worse than the Roberts controlling opinion is Justice Thomas’ concurring opinion, in which he says bluntly that the first amendment does not apply to students in school at all:

The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” In my view, the history of public education suggests that the First Amendment , as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment , public schools had become relatively common. If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not.

An extraordinary statement for anyone to make, but especially for an African-American to make. After all, his logic applies perfectly to the subject of the Jim Crow laws, which courts refused to do anything about for at least half a century after the Civil War. Does that mean such laws must be constitutional? Of course not. They were clearly unconstitutional regardless of whether the courts previously attempted to rectify them. An abysmal argument and very disappointing coming from Thomas of all people.

Comments

  1. #1 nal
    June 26, 2007

    I wonder, if the sign had said:

    “Bong Hits 4 Mohammed”

    would anyone have cared?

  2. #2 Andrew Wyatt
    June 26, 2007

    Great analysis, Ed. This seems like a backhanded reversal of Tinker to me. What’s to prevent a school from claiming that its goals include instilling patriotism, national solidarity, and respect for the military, and then banning non-disruptive yet anti-war statements such as the black armbands in Tinker? Isn’t is as easy to claim that speech that reflects lack of patriotism, divisiveness during a time of war, and lack of respect for the miliary are “just as bad” as pro-drug speech?

    Alito seems to sense where this is heading, but he preferred to draw an ambiguous distinction–political vs. non-political speech–rather than side with the liberal wing.

  3. #3 Russell
    June 26, 2007

    Thomas’s comment is breathtaking. By that logic, the courts play entirely the role of enforcing government inertia: “here is how the law has been applied — let us not stray from it.” You’re right, Ed, to point to the history of civil rights in this nation in asking, can he really mean that?

  4. #4 spartanrider
    June 26, 2007

    This ruling is sure to haunt the body politic for years to come.The ongoing debate on the medical marijuana issue is one that comes to mind.Although it is a political issue, it also advocates the use of a proscribed drug for certain conditions.Would an eighteen year old senior be called to account for wearing a button that said,I voted yes on Prop.101 if that proposition legalized the use of medical marijuana? The drug war is on going and at least for now the government does not have to brook any dissent from the younger members of society.Welcome to a brave new world.

  5. #5 pough
    June 26, 2007

    (No More) Bong Hits for Supreme Court Justices

    they’ve obviously had enough

  6. #6 TomMil
    June 26, 2007

    An abysmal argument and very disappointing coming from Thomas of all people.

    I’m not disappointed in Thomas. I always expect him to be intellectually dishonest. He remains unqualified for his position and committed perjury to get there.

  7. #7 David Durant
    June 26, 2007

    This is having a surprising amount of airplay in the press.

    Correct me if my interpretation of this is wrong. Wearing a t-shirt with the following :

    “I support the legalisation of marijuana” – allowed.
    “I like marijuana” – not allowed the day before someone leaves high school, allowed the day after they leave high school.

    Is that correct?

    As people always ask at times like these – where are the protests? The American populace scare me – like a sleepwalking giant – I don’t want to know what will happen when it wakes up.

  8. #8 Klaus Heimann
    June 26, 2007

    How do we go about impeaching supreme court justices or getting them removed from the bench. Citizens petition?

  9. #9 demo2k01
    June 26, 2007

    America is clearly broken .
    This is NOT the country i grew up in , nor the country
    i learned about in school during the 50-70’s.
    Illegals are Legal.
    Free Speech is Forbidden.
    The Supreme Court Justices are Unjust.

    We have so lost our way ..there’s no going back .
    No one cares and how do you fight City Hall ,
    Or Bong Headed Judges who really think their opinions
    that ‘ drugs are bad’ ( except the alcohol and pain
    relievers they love) are more important than a little
    thing called FREEDOM .
    How Power has Corrupted these Supreme Court Justices !

  10. #10 mcmillan
    June 26, 2007

    The way this is getting portrayed in a lot of places is that the reason the school has an interest in regulating this is not that “drugs are bad” as Ed put it but that “drugs are illegal”. It seems that this standard would make it harder to apply this ruling in broader contexts and seems more reasonable (though I don’t think that interpretation makes the ruling any more correct). Is this aspect in the ruling or is that more of people bringing in their own opinions about drugs?

    Also I’d like to hear more about why Ed thinks it’s close to call whether this counts as a school activity. From what I’ve read this is the aspect that seems to bother me the most. It doesn’t seem to make sense that if they allowed the students to leave for the day and were not required to attend the parade then the school still has control of Fredrick’s actions

  11. #11 Russ Thayer
    June 26, 2007

    In a culture that enfranchises imbecility as the sacred right of ‘politically correct’ self expression, you’re concerned with this drivel? Please!

  12. #12 J.P. Sh'Kosher
    June 26, 2007

    This ruling is most disturbing. What I find so interesting is that the poster was shown as a “prank” to get on TV for the Winter Olympics. That said, yes, it was a school sponsored event. How could a sign that read, “Bong hits for Jesus” disrupt the school environment, as was the holding in Tinker?

  13. #13 DuWayne
    June 26, 2007

    That said, yes, it was a school sponsored event.

    I’m just not seeing it. I think the question rests on, was the school accepting liability for the students? If they were, then why would they allow the students to go anywhere but the parade? If they weren’t, then I don’t see how the school can consider it a school event. Does this mean that the school has authority over student behavior at other community events, where faculty are present? Where is the line drawn?

  14. #14 BobApril
    June 26, 2007

    Just throwing this out – but since the school encouraged attendance, perhaps this was considered a voluntary school event, similar to team sports, academic clubs, or field trips. If you attended, even though it was voluntary, then you were under the school’s control. If you went home (or elsewhere), then you were on your own.

  15. #15 Ed Brayton
    June 26, 2007

    While I think the ruling is bad, let’s not overreact. It doesn’t mean that “free speech is dead” or that we’re living in a tyranny. Some perspective, please.

    mcmillan wrote:

    The way this is getting portrayed in a lot of places is that the reason the school has an interest in regulating this is not that “drugs are bad” as Ed put it but that “drugs are illegal”.

    It says both, actually. There are lots of references in the ruling about “promoting the use of illegal drugs” but there is also a whole section in Roberts’ opinion about the dangerous effects of drugs themselves and why the government has an interest in discouraging their use.

    Also I’d like to hear more about why Ed thinks it’s close to call whether this counts as a school activity. From what I’ve read this is the aspect that seems to bother me the most. It doesn’t seem to make sense that if they allowed the students to leave for the day and were not required to attend the parade then the school still has control of Fredrick’s actions.

    The court said that it was a “school approved activity” and that since they were released from school specifically for that reason, were among their fellow students and teachers and were right in front of the school, this was enough to make it within the purview of the school. Roberts wrote:

    The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22-23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. for Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.”

    That doesn’t strike me as unreasonable. It’s a very close call, I think.

  16. #16 Jacob McCandless
    June 26, 2007

    “I wonder, if the sign had said:
    “Bong Hits 4 Mohammed”
    would anyone have cared?”

    I don’t think this is a ruling in favor of Christ. The school, most schools do not want to be associated with errant behavior. It reflects poorly on the student body. Parents and benefactors see this and they wonder if it is worth supporting this boat load of losers.

    The mention of childrens is a bit peculiar to me. It seems this is not a 5th grade field hockey game. This is a collegiate body who is expected to be able to form educated, mature opinions on such matters — how ever immature the sign may have been. It’s not even very original.

    And there is a large politically active intrest group who supports the recreational, medicinal, religious, FREE, etc. use of marijuana. It is not a black and white issue. Were it

    “ABORT A BABY FOR BUSH ’04”

    there may have been some backlash. Would it be the same? It is offensive perhaps to some. Perhaps more offensive. What is the political statement? Is it Law or is it controversy?

    Interestingly Jesus never does come up in the courts these days. We’d concider The Bible to be the example for modern law. The Ten Commandments, Hammurabi, etc. Instead the bulk of Federal legislative acts is weighed out. The gravity of the ruling really should be the counterbalance.

  17. #17 Fastlane
    June 26, 2007

    I think someone noticed this particular bit before, but when I read it all in context (I read the ruling this morning), the inanity really jumped out at me.

    Clarence Thomas:

    “If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not.”

    We just substitute ‘black’ or ‘negros’ for ‘students’ and et viola:

    “If blacks were originally understood as having free-speech rights, one would have expected 19th-century government to have respected those rights and courts to have enforced them. They did not.”

    What’s the logical difference of those statements? None that I can see, yet Thomas sees that as ‘originalism’ in some twisted way.

    Depressing that this is what our country has come to.

  18. #18 Grumpy
    June 26, 2007

    …we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.”

    Should it matter that Frederick absented himself from school that day? The only way he was “at school” was because the school came to him, across the street from the building.

  19. #19 Alec Dubro
    June 26, 2007

    In 1964, the dormitory supervisor removed a sign I had on the wall while I was home on break. It was from the proto whacko political magazine, The Realist, and it read, “Fuck Communism.” I appealed to the dean of students who refused to return it. This was in college, mind you, the University of Massachusetts. And the law, such as it was, was on their side. So please, no more, “this isn’t the country I grew up in.” It is that country. However, if John Roberts thinks this is the last he’ll hear of Bong Hits for Jesus, he’s mistaken.

  20. #20 Ed Brayton
    June 26, 2007

    Alec-

    What a bizarre coincidence. I got an email from Paul Krassner, who published The Realist, just a few minutes ago.

  21. #21 Bill Schmidt
    June 26, 2007

    i agree with Ed regarding the fine line. But Justice Stephen Breyer, I believe, is the only one to get it right. He wrote separately to kick it back down as the principal by law was already immune to the suit.

    That should have been the proper course for the justices to take. Instead we have a conservative ruling limiting free speech. One more “chink in the armor of freedom” indeed. We only have a couple of more years to put up with this nonsense, hopefully.

  22. #22 AJ
    June 26, 2007

    Amazing!

    In a Glenn Beck show last week asking if this is the “END TIMES” It was pointed out that scripture says we Will make good bad and bad good.. We are there…

    Grab your shoes kiddies. Don’t follow your preacher to the “rapture” he will mislead you. If you can still “pinch an inch” Jesus has not returned.. Don’t be fooled!

  23. #23 AJ
    June 26, 2007

    Amazing!

    In a Glenn Beck show last week asking if this is the “END TIMES” It was pointed out that scripture says we Will make good bad and bad good.. We are there…

    Grab your shoes kiddies. Don’t follow your preacher to the “rapture” he will mislead you. If you can still “pinch an inch” Jesus has not returned.. Don’t be fooled!

  24. #24 TW
    June 26, 2007

    So, it was the -illegal- drugs that got them in trouble…

    ‘Boilermakers for Jesus’ would be okay?

  25. #25 kevbot
    June 26, 2007

    “…we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.”

    “The court said that it was a “school approved activity” and that since they were released from school specifically for that reason, were among their fellow students and teachers and were right in front of the school, this was enough to make it within the purview of the school.”

    Whether he was at school or not is pivotal. He was not physically on school grounds, so the burden is rightly on Morse. We seem to have a long row to hoe to make “across the street” = “at”. I guess it kind of sounds “reasonable”, but why? This is all very murky. The points taken individually are not convincing. Standing in the midst of his fellow students doesn’t qualify, neither does the time it happened, or that the school said it was OK to go. If these weak arguments given together tip the scales, it would be nice to know why. If he was carrying books, would that be even more damning? I think what really tears it was the cheerleaders and the band. Those virginal girls! Those innocent musicians! It was just like school.

    Roberts cites school district rules! HAW HAW!

    Harriet, we need you! All is forgiven!

  26. #26 Bill Schmidt
    June 26, 2007

    How about ‘Prokaryotes for Jesus’

  27. #27 kehrsam
    June 26, 2007

    You’re not one of those anti-eukaryotes, are you?

  28. #28 TomMil
    June 27, 2007

    AJ,

    So you’re the guy watching Glenn Beck. What’s up with that? Can’t find the remote?!!

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