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June 2007



Progress report

Imagine having an employee who was completely incompetent. Everything this person did on the job was a disaster. He failed to do the proper research or listen to his co-workers who had. He pushed through his own agenda despite all market research clearly saying it wouldn’t work. And he put a huge chunk of the […]

Further thoughts on Bong Hits for Jesus

Congratulations, Joseph Frederick!
At age 18, Frederick was fed up with his lack of rights as a student and decided to shake things up a bit. Take a provocative nonsense slogan from a surfboard, put it on a banner, and see if maybe the TV cameras will pick it up. It succeeded beyond his wildest dreams — the predictable over-reaction by authority, the subsequent firestorm of publicity, Ken Starr, the Supreme Court, finally ending up with the Justices of the Supreme Court debating the meaning of the phrase, and the entire country having a discussion about the rights of students. Not bad. (Current Google count: “Bong Hits 4 Jesus” 935,000; “Chief Justice John Roberts” 273,000)
The majority on the Supreme Court looked pretty silly on this one. The bizarre way in which they determined to make “Bong Hits 4 Jesus” be specific advocacy for illegal behavior is surreal.

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could beinterpreted as an imperative: ‹[Take] bong hits . . .ŠÖa message equivalent, as Morse explained in her declaration, to ‹smoke marijuanaŠ or ‹use an illegal drug.Š Alternatively, the phrase could be viewed as celebrating drug useÖ‹bong hits [are a good thing],Š or ‹[we take] bong hitsŠÖand we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is ‹meaningless and funny.Š The dissent similarly refers to the sign‰s message as ‹curious,Š ‹ambiguous,Š ‹nonsense,Š ‹ridiculous,Š ‹obscure,Š ‹silly,Š ‹quixotic,Š and ‹stupid,Š Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.

There’s almost a… petulance on the part of the Justices. Just like a school principal who feels “out of it,” there’s a fear of kids pulling one over on them. “Oh, no, you can’t fool me. I know what it means!” And so they, too, walk right into the trap set for them by Fredericks, and give the phrase a whole lot more power than it had.
The dissent really gets it right when they say:

When First Amendment rights are at stake, a rule that ‹sweep[s] in a great variety of conduct under a general and indefinite characterizationŠ may not leave ‹too wide a discretion in its application.Š Therefore, just as we insisted in Tinker that the school establish some likely connection between thearmbands and their feared consequences, so too JDHS must show that Frederick‰s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.
But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it puntsis tricky; ‹[t]he mode of analysis [it] employ[s] is not en-tirely clear,Š On occasion, the Court suggests it is deferring to the principal‰s ‹reasonableŠ judgment that Frederick‰s sign qualified as drug advocacy. At other times, the Court seems to say that it thinks the banner‰s message constitutes express advocacy. Either way, its approach is indefensible.

The majority screwed up.
But the good news is that the results of the screw-up are likely to be limited. There’s been no ruling that allows schools to censor anything that interferes with their message. There’s been no ruling allowing schools to censor political advocacy speech regarding drugs. What we’ve got is a confusing blip about a particular phrase in a particular location that will create some argument in future situations over whether a different nonsense phrase constitutes political speech or the advocacy of illegal drugs, and some more of those cases will come back to the Court.
Ultimately, this case may well be remembered for words that were not in the main opinion. These are words that may resonate for years to come, in cases beyond the unfurling of a banner at a school-released event.

I join the opinion of the Court on the understanding that… it 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.’

– Justice Samuel Alito

Surely our national experience with alcohol should make us wary of dampening speech suggesting–however inarticulately–that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

– Justice John Paul Stevens

Nice going, Joseph!
[More interesting reading on the case by Eugene Volokh and Scott Morgan and, of course, if you’re needing to catch up on the background, visit my comprehensive Bong Hits 4 Jesus page.]

Bong Hits for Jesus (updated multiple times)

Could be any day now for the decision in this Supreme Court case. Will it be a victory for free speech and the rights of students to have a life that isn’t controlled by the schools? Will it be the beginning of a drug war exception to the first amendment and establish the right of schools to censor anything that doesn’t fit what they determine to be the correct message? Or will it be something else entirely?
Note: For those who would like a quick refresher in constitutional law, read this funny piece by Walter Dellinger, wherein he is, sadly, able to boil down Supreme Court jurisprudence to its bare essence.
Update: Bong Hits case opinion not released today. They’re taking their time with it.
Further update: I was wrong (ScotusBlog was wrong for a moment as well, which is where I got my mistake). It’s decided, and it’s not great (but it’s not really that bad, either).
Justices ruled that “Bong Hits 4 Jesus” was advocating illegal drug use, the unfurling of the banner was related to a school activity, and that the principal was in her rights to censor speech that advocated or “celebrated” illegal drug use. However, the decision was narrow…
Via ScotusBlog:

Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:

I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it 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.’Š
The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school‰s ‹educational mission.Š See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.
Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.

…. The Chief Justice’s opinion, too, indicates that the case would have come out differently if the banner had “convey[ed] any sort of political or religious message,” such as that involved in “political debate over the criminalization of drug use or possession,” rather than (in the Court’s view) mere “student speech celebrating illegal drug use.”
Debate, political and religious messages — protected. “Celebration” of illegal activity (drug use, anyway) — no go. That’s the upshot.

The fact that the court specifically said that it does not support restriction of speech “on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’” is an important victory. That protects the creation of SSDP chapters, etc.
The really odd thing about this case is that the Supreme Court of the United States of America has now apparently ruled that a bunch of guys in robes knows what the phrase “Bong Hits 4 Jesus” means, and that it specifically advocates illegal drug use.
Update: Justice Thomas’ concurrence is odd and rather frightening. He doesn’t believe that students have any free speech rights at all.
Breyer in his dissent in part, concurrence in part says that the Court should have ruled that the Principal wasn’t liable for damages since she was acting in good faith, but that the Court shouldn’t have ruled at all on the First Amendment issue.
Stevens, Souter and Ginsburg dissented:

I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS‰s rule prohibit-ing willful conduct that expressly ‹advocates the use of substances that are illegal to minors.Š App. to Pet. forCert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.
In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amend-ment in upholdingÖindeed, laudingÖa school‰s decision to punish Frederick for expressing a view with which it disagreed. […]
it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectivelyÖand not very reasonablyÖthinks is tantamount to express advocacy. […]
To the extent the Court independently finds that‹BONG HiTS 4 JESUSŠ objectively amounts to the advocacy of illegal drug useÖin other words, that it can most reasonably be interpreted as suchÖthat conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court‰s feeble effort to divine its hidden meaning is strong evidence of that. […]
Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.

And check out this amazing passage in the dissent:

Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans‰ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920‰s and early 1930‰s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggestingÖhowever inarticulatelyÖthat it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.


Despicable lies

Link. Mark R. Trouville, chief of the U.S. Drug Enforcement Administration’s Miami office:

“This ain’t your grandfather’s or your father’s marijuana,” Trouville said. “This will hurt you. This will addict you. This will kill you.”

Perhaps Trouville would care to tell us just how many people have been killed by marijuana, and then how […]

Newark’s Mayor Cory Booker is fed up with the Drug War

Wow. Booker redirects his anger at the war on drugs This is big.

He is an angrier man now. And the focus of that anger is a public policy that he believes is ruining his city and threatening his hopes to change it. The problem, he says, is New Jersey’s tough tactics in the drug […]

World Anti Drugs Day attempts to disguise the catastrophic failure of the UN drug agencies

Tranform Drug Policy Foundation

On Tuesday June 26th the UN office of drugs and crime (UNODC) will celebrate annual World Anti-Drugs Day. Transform Drug Policy Foundation, the UK’s leading independent centre of expertise on drug policy and law reform, condemn the UNODC for once again attempting to dress up the striking failure of its anti-drugs strategy as success, and failing to speak out against mass executions of drug offenders in China.
Transform Drug Policy Foundation spokesperson Steve Rolles said:
‹In 1998 the UN drug agencies pledged to create a ëDrug Free World‰ within ten years. However, The UNODC‰s own annual world drug reports have chronicled the continued global rise in the production and use of drugs over the last decade, particularly of the most dangerous drugs, heroin and cocaine. By any measure the UNODC’s policy and ten year strategy has been an abject failure, with Afghanistan opium production breaking new records, and cocaine use in Europe rising dramatically.
‹But instead of reflecting on these failures and considering alternative strategies for controlling drug markets that do not involve wasting billions on futile eradication programmes and increasing militarization of the war on drugs, we just hear more tough talking and yet more announcements of new initiatives.
‹This year, as they launch another initiative with the motto ëdo drugs control your life‰, they should be asked why they have continually failed to condemn the practice in China of celebrating world anti-drugs day with mass executions of drug offenders. The UN Special Rapporteur on Summary or Arbitrary Executions has called on China to end the use of the death penalty for drug trafficking, yet the UNODC, who organise world anti-drugs day has never seen fit to comment on China‰s barbaric practices.

Call for poetry about the drug war

I ran across this singularly bad (and ignorant) piece of political poetry, supposedly about the drug war, and it got me thinking that maybe we have some poets in our midst who would like to try their hand at some real drug war poetry. I’m not really talking about Ode to the Joint I Smoked […]

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Drug Czar – fuzzy statistics, fuzzier conclusions, all in the name of job security (his)

The Drug Czar’s latest “report” on teens, drugs and violence is the usual mishmash of distorted statistics and implied conclusions not drawn from the data, all in an attempt to scare people.

Today ONDCP released a new Special Report showing that teens who use drugs are more likely to engage in violent and delinquent behavior and join gangs. Early use of marijuanaÖthe most commonly used drug among teensÖis a warning sign for later gang involvement.

Of course, when the Drug Czar brings out the big guns of the numbers to support his conclusions, it all sounds scary, unless you actually look at it. Now I haven’t even looked at any of the original data he’s drawing from, but check out this one that he promotes:

Nearly one in six teens (17%) who got into serious fights at school or work in the past year report using drugs;

However, if you look at the 2007 Monitoring the Future report, you see that the percentages of any teens who used drugs in the past year are: 8th grade (14.8%), 10th grade (28.7%), and 12th grade (36.5%). So to say that 17% of teens who got into serious fights report using drugs is not a particularly alarming thing. (In fact, it appears by these numbers that teens who use drugs are actually less likely to get into serious fights.)
But this is, of course, standard operating procedure for the Czar of Lying.
For more on how stupid this all is, see Scott Morgan’s excellent posts: Pete Gets off the Couch and Joins a Gang and Marijuana Doesn’t Cause Gang Membership, but the Drug War Does.

Radley’s busy

Radley Balko’s doing some great stuff. Today, he’s testifying “as part of House Crime Subcommittee Chairman Bobby Scott’s ‘Crime Summit.’ … topic is the militarization of domestic police departments.” There’s nobody better to talk about that subject. And on July 19th he’s been invited to testify at hearings on the Kathryn Johnston raid. It’s really […]