Monday, March 19, brought us odd doings from the final legal arbiter of all matters regarding our rights, that panel of nine justices sitting above it all in Washington. Dahlia Lithwick tries to explain it all in one of her Supreme Court Dispatches, Bong Hits 4 Jesus – and that is what the whole thing is about. A high school student in Alaska hoisted up a fourteen-foot long banner that said just that to get on television – and he certainly did. And the high school suspended him.
How this got to the Supreme Court, as a free speech matter, is all in that suspension –
Frederick held up his banner for the TV cameras, just opposite school property during a local event celebrating the Olympic torch relay in 2002. The principal seized the sign and suspended him. He sued, and while he lost in the trial court, he won at the 9th Circuit Court of appeals, which went so far as to say that the principal could owe him money damages.
The Wall Street Journal’s “Law Blog” adds detail –
The incident occurred in January 2002, as the Olympic torch relay wound through Juneau, en route to the winter games in Salt Lake City. As the torch passed by the school, student Joseph Frederick and friends unfurled the banner across the street from campus apparently to attract the attention of television cameras.
A bong is a popular device used to smoke marijuana, inhalation from which is commonly known as a “bong hit.” The school principal suspended Frederick – allegedly the only student who disobeyed her command to put down the banner – for 10 days. Frederick claimed the suspension violated his First Amendment right to freedom of speech. A federal district judge sided with the school, but a panel on the U.S. Court of Appeals for the Ninth Circuit unanimously reversed.
It was the Court of Appeals for the Ninth Circuit that seems to have suggested that the principal, Morse, might even owe monetary damages to the kid. So she jumped the matter one step higher. There must be some essential principles involved here, or folks in Alaska have far too much time on their hands.
Lithwick, having attended the oral argument in Morse v. Frederick on this particular Monday adds more about Joseph Frederick and whatever motivation he had –
He knew it was a meaningless phrase. He’d seen it on a snowboard. (Nine out of 10 potheads I polled for this piece confirmed these words are no more meaningful when stoned.) But Frederick wanted to annoy school administrators, and he wanted media attention, and as we discovered today, he chose well on both fronts. He was suspended for 10 days. And we are out in droves to cover his case. The words “Bong Hits 4 Jesus” do grab headlines, and even the justices seem to be giggling and getting the munchies as they speak the words this morning.
It must have been fun – but sessions are not yet televised, so we have to take Lithwick’s word for it.
It cannot have been that much fun as Kenneth Starr argued for the right of the school to suspend its students for such things. As you recall, he was the lawyer and former judge who was appointed to the Office of the Independent Counsel to investigate the death of deputy White House counsel Vince Foster – and the Whitewater land transactions – back in the Clinton years. And who can forget the famous and down and dirty Starr Report submitted to congress, as that led to Clinton’s impeachment on charges having to do with that Monica Lewinsky business. It was quite explicit. Yes, there was nothing much there in the end with these three matters, but never mind – Starr currently is the dean of Pepperdine University’s School of Law out here in Malibu – the place with the stunning campus. The Republican right takes care of its people.
And here he seems to have argued any possible success in our nation’s War on Drugs depends upon the unconditional message from our schools at all levels that drugs are bad, and as Lithwick characterizes his problem with this one young lad – “yet schools cannot enforce that message because smartass kids keep undermining them.” The kid really must pay for his blasphemy, or something.
What he is basically arguing is clear – schools really must have limitless discretion to craft broad “educational missions” – and we’re “on a mission” here. Schools, then, must be completely free to quash any student speech that “undermines” such messages.
There’s educating going on here – no questions or comments allowed, even snarky and absurd banners.
Elsewhere, Marty Lederman, notes how odd this is –
The Solicitor General, along with the school, has argued that primary and secondary public schools ought to be permitted to engage in viewpoint discrimination and restrict student speech whenever the “message” conveyed by the student is “inconsistent with the school’s basic educational mission.” So, for instance, on this view a school could discipline a student for engaging in any advocacy of unlawful conduct, or expression of a message inconsistent with the teachings of the school itself, at least where such teachings are “central to a school’s basic educational mission.”
In Morse itself, the speech did not even occur in the school. (The students in question were absent that day, and unfurled their banner on a public street, during a parade, in plain view of other students who had assembled there during a period when the school had “released” its classes to watch the parade.) Thus, the SG’s argument might be read to suggest that students can even be disciplined for public speech conveyed to fellow students, as long as the message conveyed is inconsistent with the school’s “basic educational mission.”
This truly is a bold argument – that the viewpoint expressed by the student can actually be a constitutional justification for the school’s restriction of the student speech.
Well, that is the argument – kind of like the one in Tinker v. Des Moines, where students protesting the war in Vietnam by wearing black armbands was the issue. Could they be made to remove their armbands in school? Back then the court said no – ordering that was silly and students did have some free speech rights – the Tinker Doctrine, as it is known – “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
If the Court were to adopt the argument, it would likely sound the final death-knell for the Tinker doctrine, which has been increasingly watered down in recent years. If the argument were credited, for example, then apparently the school district in Tinker itself would and should have prevailed if (i) the student armbands in question read “Dodge the Draft”; or (ii) the school itself had been trying to inculcate patriotic loyalty, or support for the nation’s foreign affairs.
But this foolish kid had to wave some sort of nonsense banner that not only had to do with drugs, but mentioned Jesus, which raised a whole different issue –
While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.
The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”
The institute, based in Plano, Tex., told the justices in its brief that it was “gravely concerned that the religious freedom of students in public schools will be damaged” if the court rules for the school board.
Now that just muddies the waters. The religious right wants the kid to pay for making fun of Jesus, and that group in Plano says, no, that would be a dangerous precedent. The kid isn’t exactly a Danish cartoonist mocking Mohammad (all praises be to him), after all – but there is a parallel.
Is this about undermining the wonderful war on drugs, or is it about making fun of Jesus?
Lithwick says it’s quite basic – the court actually must decide whether Frederick’s banner is more like John and Mary Beth Tinker’s black armband back in Des Moines in 1969, or is a rather serious disruptive call to lawless drug use that must be stopped. Jesus can wait.
It really is just a matter of getting smartasses to shut up – which is probably why the Bush administration entered the case on the side of the principal and the Juneau School Board, both represented by that bulldog of cases where there is not much there, Starr. His law firm, Kirkland and Ellis, is handling all this without a fee – assisted by one Edwin S. Kneedler, a deputy solicitor general there to present the government’s view of this all. And the National School Board Association, two school principals’ groups, and a number of anti-drug organizations also filed briefs on the school board’s side. The kid is in trouble.
And Lithwick reports the following from the arguments she saw –
At some point, Justice Stephen Breyer groans that a ruling for the students would encourage them to be “testing limits all over the place in the high schools,” whereas a ruling for the schools would certainly end up limiting lots of speech.
Starr opens with the statement that “the glorification of the drug culture” is at stake here. He claims that schools, even under the broad standard laid out in the armband case, can’t necessarily limit political protest but may bar “disruptive speech.” This sets the court’s hippies off. Justice Anthony Kennedy: “There’s no classroom here.” Justice David Souter: “What did it disrupt on the sidewalk?”
Starr insists that “Bong Hits 4 Jesus” promotes drugs. Justice Ruth Bader Ginsburg asks whether a sign that said “Bong Stinks for Jesus” would be more permissible. Souter asks whether a simple sign reading “Change the Marijuana Laws” would also be “disruptive.” Starr says that interpreting the meaning of the sign must be left to the “frontline message interpreter,” in this case, the principal. Then Starr says schools are charged with inculcating “habits and manners of civility” and “values of citizenship.” Yes, sir. In the first six minutes of oral argument Starr has posited, without irony, a world in which students may not peaceably advocate for changes in the law, because they must be inculcated with the values of good citizenship.
Chief Justice John Roberts wonders why students should be allowed to set the classroom agenda when teachers are trying to teach Shakespeare and Pythagoras. Starr says that in the Vietnam protest case, the school tried to “cast a pall of orthodoxy” by banning student protest. Whereas, he suggests – again without a whiff of irony – that students should be able to offer no dissenting opinions here because drugs, alcohol, and tobacco are bad.
Breyer (who seems to be having one of those “my hand looks sooooo big” trips) thinks maybe a better rule is one that bans any and all 15-foot banners on field trips.
Deputy Solicitor General Edwin Kneedler argues the school’s side of the case on behalf of the Bush administration. Justice Samuel Alito finds it “very, very disturbing” that schools can define their “educational missions so broadly” that they can limit important student speech. He’s worried about the evangelical groups, who sit, improbably, at the stoners’ table in the cafeteria today. These groups worry, not unreasonably, that the targets of most school suppression of politically incorrect speech are religious students sporting pro-Jesus or anti-gay T-shirts.
And so it goes – but you can see where the sympathies of constitutional lawyer, Lithwick, lie – “a world in which students may not peaceably advocate for changes in the law, because they must be inculcated with the values of good citizenship,” is rather absurd. You might want students to think. If they think a law should be changed, make them argue their point – it’ll be good for them. They’ll learn something in the attempt.
The government seems to have a different view of the matter. Education means something else to them.
But it is never that simple –
By the time Douglas Mertz gets up to argue on the students’ side, it looks like he’s already won, if for no other reason than the justices appear horrified by the limitless power the schools are asserting. But somehow he manages to trigger a second, more terrifying episode of paranoia in them. “This is a case about free speech, not drugs,” he opens, but Roberts clocks him with: “This is a case about money. Your client wants money from the principal for her actions.” Then Kennedy jumps in to ask what kind of kid would go after “a teacher who has devoted her life to this school, and you’re seeking damages from her for a sophomoric sign.”
Scalia begins to bogart the argument at this point and asks whether a school that held an anti-drug rally in the gym would have to permit a student to wear a button that says, “Smoke pot. It’s fun.” Mertz repeats that student protest can’t be “disruptive.” Scalia retorts that “undermining what the school is trying to teach” is pretty disruptive. Kennedy asks about a student sporting a button that says, “Rape is fun.” Mertz says students may not advocate violent crime. This sets Scalia off again. “So, they can only advocate non-violent crime?” he snorts. “Like, ‘Extortion is profitable?'” He adds that “this is a very, very, with all due respect, ridiculous line.”
Now they all start to bicker about disputed questions of fact. Like whether it matters that the students were given time off to watch the Olympic torch, or that Frederick still wants the record of his suspension expunged, or that Frederick played hooky so that he could hold up his banner, yet specifically went to a spot directly next to the school to join his classmates (thus reaping the benefits of skipping school while still attending school for the purposes of annoying the school administrators).
This is what these nine do all the time? All this over that stupid banner?
And as for that noble, long-suffering “teacher who has devoted her life to this school” – who rose to be the principal and then suspended this kid for his odd and rather meaningless banner that he held up across the street when he wasn’t even at school – well, she’s a long way from the classroom where she started.
How do you handle smartass disruptive kids? You ask them to explain themselves – to explain their “unusual” point of view, and have them defend it with whatever logic they can muster. You put them on the spot. You engage them. You listen carefully, and you ask probing questions, lots of them. You actually try to understand. And, oddly enough they learn something along the way (and even more oddly, sometimes, rarely, but sometimes, they are right, or at least have a point) – or they slink off in embarrassed silence.
Hey, teaching adolescents isn’t comfortable. Been there. Done that.
And anyway, Lithwick points to this from 1971 –
Cohen v. California
SUPREME COURT OF THE UNITED STATES
Appellant was convicted of violating that part of Cal. Penal Code § 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person … by … offensive conduct,” for wearing a jacket bearing the words “Fuck the Draft” in a corridor of the Los Angeles Courthouse. The Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.
And from way back in 1942, Chaplinsky v. New Hampshire –
That as applied to a person who, on a public street, addressed another as a “damned Fascist” and a “damned racketeer,” it does not substantially or unreasonably impinge upon freedom of speech.
And there’s the right to burn the flag in Texas v. Johnson (1984) –
Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.
So what of this “Bong Hits 4 Jesus” banner? Lighten up, folks. It’s a free country – if we can keep it that way. People say silly and stupid things. Deal with it.