Another Zinger from our Nine Best Friends of Liberty
The Supreme Court today finally handed down a decision in the Bong Hits 4 Jesus case (informally known as Morse v. Frederick (06 US 278) to those of us who like to get down and groovy with the politicking).
Here's why it sucks.
What annoys me about this case isn't the supposed "free speech in schools issue." I largely agree, in fact, with Thomas' Concurrence that Tinker v. Des Moines Independent Community School District (393 US 503) may have been wrongly decided - that students do not, in fact, have broad free speech rights of any kind while at school. But the point is that Joseph Frederick wasn't at school when he rolled out his "Bong Hits 4 Jesus" banner. That school was going on across the street is irrelevant: the school (plainly) does NOT have the authority to regulate speech outside of its campus or off-campus school-related activities. Not even if the "offending" party is a regular student at the school. Not even if the "offending" party is a regular student at the school currently truant within view of school property. Think about it - if it hadn't been Frederick but rather two college kids, would anyone at all allow the principal to confiscate the banner, as happened here? Of course not. The First Amendment protects such displays! There is no footnote to the First Amendment that says "Oh, wait, Congress can so too make laws abridging the freedom of expression if some schoolkidz might see it." No.
Frederick was within his Constitutional rights to skip school and roll out a silly banner with his (still unidentified, to his credit) friends that read "Bong Hits 4 Jesus" across the street from a school event.
What's paricularly irritating to me about this ruling, though, is that votes seem to have turned on whether the justices accepted Frederick's claim that the sign was "merely a prank" or whether they considered it "advocacy for illegal drug use." Now, that in and of itself is a good sign. After all, if it's "just a prank," then Frederick's First Amendment claim is irrelevant (since pranks are not protected public speech I guess - at least not pranks in the broad sense) - so this would seem to be the sort of thing the Court should consider.
What makes it perverse in this case is that they seem to have gotten it backward. That is, the Justices who voted with the majority (i.e. there was no First Amendment violation) seem to also be the ones who refused to accept it as "just a prank." Here, in fact, is the Court's wording:
Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.
And from Stevens' dissent:
I agree with the Court that the principal should not be held liable for pulling down Frederick's banner. See Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982) . I would hold, however, that the school's interest in protecting its students from exposure to speech "reasonably regarded as promoting illegal drug use," ante, at 1, cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.
Um...HELLO??? The whole bleeding point of the First Amendment is to protect unpopular opinions from government censure. So...
What Tinker specifically says about students' First Amendment rights is that they have them - but that these rights are balanced, in school, against the rights of other students to an environment conducive to learning. The specific wording:
A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.
So... Well, it's pretty damn clear, right? The school may NOT censor Frederick's banner because it advocates illegal drug use: that is an opinion and protected by the Constitution (provided you think Tinker was rightly decided, I mean). The school may only censor Frederick's mode of speech if it is disruptive. (For those not in the know - Tinker was a 1968 case in which students were suspended for wearing black armbands in protest of the Vietnam War. Since armbands are not disruptive, the Court ruled 7-2 that they were protected free speech - in effect, that schools may only censor speech when the speech in question is disruptive, but never based on its content.) So this is exactly backward. Those who think this is "merely a prank" should send the case away as inconsequential and let the disciplinary action stand (for local authorities to decide whether school authority extends beyond campus for such issues). Those who think, however, that it is expressing an opinion should then consider whether it was expressed in a disruptive manner.
Unfortunately, the Court seems to think that the content of Frederick's banner is somehow relevant to the whole affair. Let's play this again, shall we?
...schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use...
And Stevens, in dissent:
...school's interest in protecting its students from exposure to speech "reasonably regarded as promoting illegal drug use..."
SINCE WHEN DOES A SCHOOL HAVE AN INTEREST IN "PROTECTING" ANYONE, LET ALONE ITS STUDENTS, FROM EXPOSURE TO SPEECH "REASONABLY REGARDED AS PROMOTING ILLEGAL DRUG USE???" I mean... I MEAN... I MEAN!!!
I mean this is clearly an outrage. The First Amendment protects political speech in general ... oh, bucept when it's about smoking pot? REALLY???
And (not that this is technically relevant, but...) it's MARIJUANA, for cryin' out loud! You know, the drug that's less harmful than cigarettes or alcohol but somehow illegal anyway? If there's one recreational drug on BigGuv's hitlist that clearly doesn't belong there it's this one, people! It's not like Frederick's advocating the use of anyting, you know, damaging or addictive.
Anyone who thinks that the War on Drugs is not causing serious and probably irreparable harm to our framework of Constitutional liberties need only read the syllabus to this case to see how quickly public drug hysteria skews our priorities. The right to free expression is among our most precious. And yet here we have the highest-ranked, most authoritative experts on Constitutional law in the land ruling that it was NOT violated BECAUSE the speech in question happens to be "objectionable." If that isn't scary fucked-up, I just don't know what is.
Of course, the proper ruling here is that the school has no business censoring anything outside of its property (with a possible exception for field trips, of course). And of course, the banner is pretty clearly an attention-grabbing prank more than a political manifesto - so this case is already generating attention all out of proportion to actual events. But once you've (wholly implausibly) accepted it as both "political speech" and "on-campus," then the issue is whether it is disruptive - NOT and NEVER and NO WAY what "opinion" it happens to be advocating.
I would have (reluctantly) accepted a ruling that identified it as on-campus political speech and upheld the suspension on grounds that the sign was disruptive (which it pretty clearly is, after all). But to identify it as on-campus political speech and uphold the suspension not because it was disruptive, but because the message is "bad" - well, that's a clear violation of a citizen's Constitutional liberties. But then, these are (largely) the same jokers (switching sides on who's good and who's evil on this one) that gave us the disastrous Kelo v. City of New London (04 US 108) abomination. So outrage though it may be, it is hardly surprising.